Building Act 2011 (WA), s 110

State Administrative Tribunal Act 2004 (WA), s 9, s 32

State Administrative Tribunal Rules 2004 (WA), r 42A

Strata Titles (General) Regulations 2019 (WA), reg 15, reg 70, reg 70(1)

Strata Titles Act 1966 (WA)

Strata Titles Act 1985 (WA), s 3, s 10, s 14(8), s 42, s 97, s 97(1), s 97(2), s99(2), s 119, s 197(1), s 197(1)(a), s 197(2), s 197(4), s 197(5), s 197(5)(b), s 199(1), s199(3), s 200(1), s 200(2), s 200(2)(l), s 200(2)(m), s 200(2)(n), s 200(2)(o)(i), s 200(2)(o)(ii), s 200(4), Sch 2A, Pt 5, cl 53A, cl 53B, cl 53C, cl 53C(2)(b), cl 53C(3), cl 53D, cl 53D(3), cl 53E

Ainsworth v Albrecht [2016] HCA 40; (2016) 261 CLR 167

Bendall-Harris v Aitken [2008] WADC 112

Carr and The Owners of 252 Cosy Corner Road Kronkup Survey-Strata Scheme 55030 [2024] WASAT 132

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2024] WASAT 25

Giabeni Pty Ltd and The Owners of 30 Coode Street Mount Lawley Strata Plan 11321 [2024] WASAT 105

Hopkins and Clayton [2007] WASAT 255

In Kruger v The Commonwealth of Australia [1997] HCA 27; (1997) 190 CLR 1

Minister for Immigration and Citizenship v Li [2013] HCA 18

The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1

Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492

Zhao and The Owners of 5 Wimbledon Street Beckenham Strata Scheme 40695 [2025] WASAT 87

1. The genesis of the dispute before the Tribunal is a brick wall that separates the rear of Lot 3 and Lot 4 on Strata Plan 2813 (strata plan). Unlike the neighbours in the 1914 poem, 'Mending Wall' penned by Robert Lee Frost, where the neighbours came together to mend the fence that separated their properties, the two neighbouring lot owners in this proceeding did not come together to mend the brick wall.
2. The strata plan was registered on 31 December 1975 by the Registrar of Titles under the (then) Strata Titles Act 1966 (WA) (1966 Act).[1] It is a single tier scheme as no lot exists above another lot and is comprised of four residential lots (strata scheme). The strata scheme is described on the strata plan as a:[2]

Part single storey, part double storey, brick and tile quadruplex with attached car ports[.]

1. According to Annexure A of the strata plan, the City of South Perth transferred to The Owners of 38 Lockhart St Como Strata Plan 2813 (strata company) a portion of the resumed land on plan 3352 and now comprised as Lot 15 on Diagram 88424.[3] The transfer was effected on 28 February 1995 for consideration of $1,500 (by Notification F817031).[4]
2. The strata plan does not reflect any changes to the scheme by-laws. In particular, there is no exclusive use by-law registered by the Registrar of Titles.
3. On 22 March 2025, Ms Hoddinott commenced proceedings in the Tribunal against Ms Zar, who is the owner of Lot 4 and against the strata company under s 197(4) of the Strata Titles Act 1985 (ST Act)[5] for the resolution of a scheme dispute.[6]
4. Following a number of directions hearings, on 31 July 2025, the Tribunal ordered the parties to attend mediation on-site. The parties were unable to resolve their dispute or narrow down the issues through that process.
5. In short, Ms Hoddinott's position is that that Ms Zar's actions have 'resulted in 18 months of hell for the rest of us' with the brunt being borne by her as the only one with 'clean hands' in the matter who has attempted to protect the integrity, character and value of the property.[7] Ms Hoddinott urges the Tribunal to make the orders sought by her including that Ms Zar be required, at her cost, to have the brick wall re-instated (where there is now a Colorbond fence) and the conduit re-attached to that wall and any damage rectified.
6. In contrast, Ms Zar's position is that she and the other two owners (apart from Ms Hoddinott) have acted reasonably to address serious defects affecting the common property, safety and the insurability of the strata scheme. If the orders sought by Ms Hoddinott are granted by the Tribunal, Ms Zar submits that they would improperly shift the responsibility for the common property and statutory compliance onto a single lot owner. Therefore, Ms Zar urges the Tribunal to dismiss Ms Hoddinott's application.[8]
7. In the following reasons, I explain why Ms Hoddinott's application is partly successful. The resulting orders are set out below following [184].

1. As is usual with these types of matters, the Tribunal made orders for the filing of documents, photographs and other materials on which each party intends to rely on to prove their case.[9]

1. All the documents filed with the Tribunal were taken into evidence[10], subject to any objection. There was no objection. In making my decision for the Tribunal, I have had regard to the documents which at the final hearing, the Tribunal marked as exhibits as follows:

Exhibit 1 Application and supporting submissions printed by Tribunal on 28 November 2025 (pages 1 to 17);

Exhibit 2 Applicant's bundle of documents filed 20 on October 2025 (pages 1 to 405);

Exhibit 3 First respondent's bundle of documents filed on 3 November 2025 (pages 1 to 53);

Exhibit 4 First respondent's variation of contract of sale filed on 11 December 2025 (page 1); and

Exhibit 5 Applicant's further bundle of documents filed on 12 December 2025 (pages 1 to 40).

1. On 17 December 2025 I had the benefit of attending the strata complex for a site view. Ms Hoddinott, Mr James Hoddinott, Ms Zar, Mr John Zar and Ms Kira Napier were in attendance. Immediately following the site view, I heard the matter (final hearing), following which I made orders for the parties to file their closing written submissions. The last of the submissions was received on 30 January 2026, following which I reserved my decision for the Tribunal.
2. At the final hearing, I had the benefit of hearing from the following witnesses.

1. First, Mr James Hoddinott who filed a witness statement dated 20 October 2025.[11] Mr Hoddinott confirmed the contents of his statement at the final hearing. Mr Hoddinott is Ms Hoddinott's sister. Mr Hoddinott gave affirmed evidence that he attended Lot 3 on or about 23 June 2015 in order to collect his sister to drive her to the airport, and that while he was at Lot 3 he saw contractors from Lot 4 at the rear of Lot 3, and upon leaving he heard the sound of an angle grinder.
2. Second, Ms Hoddinott who filed a witness statement dated 20 October 2025.[12] Ms Hoddinott confirmed the contents of her statement at the final hearing. Ms Hoddinott has lived at the strata complex for about 35 years. Ms Hoddinott gave affirmed evidence that she is the owner of Lot 3 (as a joint tenant with Mr Vanic) and gave evidence about the construction of the brick wall, the works done at the rear of Lot 4, her objection to the demolition of part of the brick wall (referred to the parties as 'Part B') and installation of the Colorbond fence, her use of the rear of Lot 3 (referred to by the parties as the 'courtyard'), the damage to her patio and BBQ located in her courtyard, her payment of insurance for the strata company, the failure of the other owners to contribute to that insurance premium and her dealings with the City of South Perth including the building order issued by the City of South Perth on 31 January 2025 (Building Order).
3. Third, Mr Zar. Mr Zar is Ms Zar's father. Mr Zar attended the site view on 26 February 2025. Mr Zar gave affirmed evidence about that site view.
4. Fourth, Ms Zar who filed a witness summary dated 3 November 2025.[13] Ms Zar confirmed the contents of her statement at the final hearing. Ms Zar gave affirmed evidence that she purchased Lot 4 on or about 1 September 2023 and resides at the strata complex. Ms Zar also gave evidence about the $5,350 credit she received from Mr Dan Russell (the former owner of Lot 4), the repair of part of the brick wall (referred to as 'Part A' by the parties) which she paid for, the replacement of part of the brick wall (Part B) with a Colorbond fence which she paid for and received $622 from each of the owners of Lot 1 and Lot 2, why she did not contribute to the insurance premium paid by Ms Hoddinott, various correspondence with Ms Hoddinott and dealings with the City of South Perth concerning the Building Order.
5. Fifth, Ms Napier who filed a witness statement dated 2 November 2025.[14] Ms Napier confirmed the contents of her statement at the final hearing. Ms Napier gave affirmed evidence that she is the owner of Lot 2 and currently resides at the strata complex. Mr Napier gave evidence that when Lot 4 was for sale there was no indication of any issues concerning the brick wall or other shared structures. Ms Napier also gave evidence that she did not contribute to the insurance policy arranged by Ms Hoddinott. Finally, Ms Napier gave evidence that the strata company has been without insurance since May 2024 due to ongoing lack of co-operation surrounding repairs to common property.

1. After determining whether the Tribunal has jurisdiction to consider the application made by Ms Hoddinott under s 197(4) of the ST Act, I will turn to consider the following three key issues:[15]

Issue 1 : Whether for this single tier strata scheme:

(a) the [brick] wall/fence between Lot 3 and Lot 4 is on common property?

(b) the patio and BBQ used by the occupiers of Lot 3 are on common property? [common property issues]

Issue 2: Whether the following motion passed at the council meeting held on 9 December 2024:

Motion: A levy will be raised, divided equally among all four owners, to cover the cost of repairing or replacing the damaged fence between [Lot] 3 and [Lot 4], based on the cheapest available quote

(c) is unfairly prejudicial to, or discriminatory against the owner of Lot 3 or oppressive or unreasonable (refer s 119 of the [ST Act]; and/or

Issue 3: Whether the strata company failed to have insurance coverage as required by cl 53C of Sch 2A of the [ST Act] for a single tier strata scheme? [insurance issue]

1. In respect of the above issues, Ms Hoddinott seeks the following orders against Ms Zar and/or the strata company:[16]

(a) an order under s 200(n) of the [ST Act] that the strata company is taken not to have passed the motion at the council meeting held on 9 December 2024 concerning the repair/replacement of the brick wall between Lot 3 and Lot 4;

(b) an order under s 200(2)(n) of the [ST Act] that the strata company is taken to have passed a scheme by-law as a resolution without dissent that the area [to be confirmed at final hearing] immediately to the rear of Lot 3 described as a 'courtyard' is for the exclusive use of the occupiers of Lot 3 and the area of [to be confirmed at final hearing] immediately to the rear of Lot 4 described as a 'courtyard' is for the exclusive use of the occupiers of Lot 4;

(c) an order under s 200(2)(b) of the [ST Act] that requires the owners of Lot 4, at their cost, to reinstate the brick wall including conduits between Lot 3 and Lot 4 and to repair the reticulation and water feature within 60 days of the order;

(d) an order under s 200(2)(e) of the [ST Act] that requires the owners of Lot 4 to reimburse the owners of Lot 3 the amount of $2,800 for the repairs to the patio and BBQ;

(e) an order under s 200(2)(o)(i) of the [ST Act] that requires the strata company to have insurance coverage as required under cl 53C of Sch 2A of the [ST Act] for the strata complex for the current insurance period and going forward; and

(f) an order under s 200(2)(o)(ii) of the [ST Act] that requires the strata company to reimburse the applicant the amount of $825 [75% x $1,100] for insurance paid by the applicant to Suncorp on [date to be confirmed at final hearing] in respect of insurance for the strata complex.

1. If I find issue (1) and issue (2) are made out, I will then need to consider if it reasonable in all the circumstances of this case to exercise the Tribunal's discretionary powers under s 200 of the ST Act to make one or more of the orders sought by Ms Hoddinott. By way of example, if I find that the brick wall/Colorbond fence between Lot 3 and Lot 4 is on the common property and that it was not authorised by the strata company and that it is not the subject of an exclusive use by-law, then I will need to consider whether to exercise the Tribunal's discretionary powers under s 200(2) of the ST Act to resolve the scheme dispute, for example, by making an order that the strata company is taken not to have passed the December 2024 fence motion.
2. I now turn to consider whether the Tribunal has jurisdiction to determine the matter.

1. Neither party challenged the jurisdiction of the Tribunal. However, before considering each of the key issues (see above at [19]), I must first be satisfied that the Tribunal has jurisdiction to determine Ms Hoddinott's application. As stated at the outset, and is repeated here, the Tribunal accepts Ms Hoddinott's application as an application under s 197(4) of the ST Act.
2. Ms Hoddinott and Mr Alexander Vanic own Lot 3 as joint tenants. Consequently, on being informed that two persons jointly own Lot 3, on 10 December 2025, the Tribunal joined Mr Vanic to the proceeding as the applicant with Ms Hoddinott.[17]
3. Mr Vanic informed the Tribunal that he has not had any involvement with Lot 3 for a long time and that he would not be filing any documents. Further, Mr Vanic informed the Tribunal that he would not be participating in the final hearing but did not seek to have himself removed as a party to the proceeding.
4. Section 197(1)(a) of the ST Act provides for the resolution of 'scheme disputes' between 'scheme participants'.
5. In this case, I find there is a 'scheme dispute' as that term is defined in s 197(1) of the ST Act. It concerns, at least, the December 2024 fence motion passed by the council concerning the brick wall/fence between Lot 3 and Lot 4 and the insurance required for the strata complex.

1. Section 197(2) sets out who is a 'scheme participant'. The strata company is expressly included as a scheme participant.
2. Included in the definition of scheme participant in s 197(2) of the ST Act is 'a member of the strata company'. The term 'member' is defined in s 3 of the ST Act by reference to s 14(8) of the ST Act which provides:

(8) A strata company is comprised of the owners for the time being of the lots in the strata titles scheme (who are the members of the strata company). (Added emphasis)

1. Ms Hoddinott and Mr Vanic together are the owner of Lot 3 as joint tenants. In other words, they are each a co-owner of Lot 3 but together they are the owner of Lot 3.
2. Properly construed, s 197(2) of the ST Act provides that the owner of a lot is a scheme participant. This means Ms Hoddinott and Mr Vanic jointly are the owner of Lot 3 and therefore a scheme participant. Therefore, as a party to the dispute, Ms Hoddinott together with Mr Vanic, may make an application to the Tribunal (s 197(4) of the ST Act).
3. As already noted and repeated here, only Ms Hoddinott made the application to the Tribunal and that Mr Vanic informed the Tribunal that he has not had any involvement with Lot 3 for a long time. Mr Vanic did not participate in the proceeding.
4. For the reasons set out below, Mr Vanic is removed as a party (applicant) to the proceeding on the basis that Ms Hoddinott, as an occupier of Lot 3 has standing to make the application.

1. 'The occupier of a lot' is also included in s 197(2) of the ST Act as a scheme participant. The term 'occupier' is defined in s 3 of the ST Act as:

occupier of a lot means a person who occupies the lot on a temporary or permanent basis (either solely or jointly with other persons) and includes a person who is unlawfully in occupation of a lot[.]

(added emphasis)

1. It is uncontroversial and I find that Ms Hoddinott is an occupier. This is because Ms Hoddinott is a person who occupies Lot 3. Consequently, Ms Hoddinott, as a person who occupies Lot 3 is a scheme participant. However, as an occupier, Ms Hoddinott is limited by s 197(5) of the ST Act in making an application to disputes about:

(a) the scheme by-laws; or

(b) a resolution or decision of the strata company that directly affects the occupier; or

(c) an obligation or right of the occupier under this Act or the scheme by-laws.

1. In this case the decisions made by the council meeting on 9 December 2024 concerning the brick wall/fence and insurance for the strata complex directly affects Ms Hoddinott and therefore fall within s 197(5) of the ST Act.

1. Consequently, I am satisfied that the Tribunal has jurisdiction to determine the scheme dispute which include the brick wall/Colorbond fence issue and the insurance issue on the following basis:

(a) the strata company and Ms Zar as the owner of Lot 4 fit within the definition of 'scheme participant' as that term is defined in s 197(2) of the ST Act;

(b) Ms Hoddinott as an occupier of Lot 3 fits within the definition of 'scheme participant' as that term is defined in s 197(2) of the ST Act and satisfies the requirements of s 197(5)(b); and

(c) Ms Hoddinott made the application to the Tribunal under s 197(4) of the ST Act.

1. The proceeding comes within the Tribunal's original jurisdiction (s 209 of the ST Act). As explained in Zhao and The Owners of 5 Wimbledon Street Beckenham Strata Scheme 40695 [2025] WASAT 87 at [10] the role of the Tribunal is not inquisitorial. That is, while the Tribunal may determine how to proceed with a hearing as provided for in s 32 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), it is not the role of the Tribunal to take the lead in the investigation of the facts. Rather, the role of the Tribunal is to make a decision on the evidence in relation to the dispute on the basis of the evidence presented to it and the usual practice is that the parties have the management of their respective case. Therefore, Ms Hoddinott, as the applicant bears the burden of proving her case, that is, persuading the Tribunal that she is entitled to the relief (orders) that she seeks against Ms Zar and against the strata company, being the civil standard of proof, being on the balance of probabilities.
2. I now turn to work through each of the three key issues in turn (see above at [19]) which will ultimately lead to my decision in resolving the scheme dispute.

1. It is common ground that the brick wall/Colorbond fence between Lot 3 and Lot 4 is on the common property.[18]
2. It is also common ground that the patio (a lightweight and lattice structure)[19] and the BBQ at the rear of Lot 3 (in the courtyard) are on the common property. However, at least in correspondence with the City of South Perth, Ms Hoddinott denies that the patio and BBQ are common property (even though she accepts the structures may be on the common property).[20]

1. The term 'common property' is defined in s 10 of the ST Act. That section provides:

(1) The common property in a strata titles scheme is -

(a) that part of the parcel of land subdivided by the strata titles scheme that does not form part of a lot in the strata titles scheme; and

(2) The common property includes, for a strata scheme, those parts of a scheme building that do not form part of a lot.

(3) The common property does not include -

(a) any land vested in the Crown under the Planning and Development Act 2005 section 152; or

(b) any dedicated road under the Planning and Development Act 2005 section 168.

1. In this case, the strata plan depicts four lots with equal unit entitlement (even though the area size of each of Lot 3 and Lot 4 are much bigger than Lot 1 and Lot 2). The common property is explained by the following notation on the strata plan:

As at 20th July 1997 unless a notice of resolution under section 21H or an objection under 21O has been recorded on the strata plan -

The boundaries of the lots or parts of the lots which are buildings shown on the strata plan are the external surfaces of those buildings, as provided by section 3AB of the Strata Titles Act 1985;

...

Where 2 lots have a common or party wall, or have buildings on them which are joined, the centre plane of that wall or the plan at which they are joined, is the boundary;

The horizontal boundaries of the lots or parts of the lots which are not buildings shown on the plan (if any) remain as provided on this strata plan.

1. In this case it is uncontroversial and I find that the brick wall/Colorbond fence (Part A and Part B) is on the common property. Further, it is common ground and I find that the BBQ and the patio are on the common property. Finally, it is also uncontroversial and I find that the rear of each of Lot 3 and Lot 4 (which the parties refer to as the 'courtyard') is common property. This includes the resumed land (which the parties refer to as the 'laneway') at the far rear of Lot 3 and Lot 4 which was transferred to the strata company on 28 February 1995.

1. The minutes of the meeting held on 18 September 1996 provide that Ms Sonia Turkington (who then was an owner of Lot 4) was to enquire into the granting of exclusive rules under s 42 of the ST Act (as it was prior to major amendments made on 1 May 2020) and Form 21. The minutes of that meeting, which are handwritten and signed by Ms Turkington, provide in part:[21]

Exclusive Use:

It was resolved that in view of the changes taking place in the Strata Act, Sonia Turkington would enquire into the granting of exclusive use areas under section 42 and Form 21 which applies to By Law 16 and grants exclusive use to the registered proprietors and occupiers.

1. Ms Hoddinott explained that in or about 1996 the extension of the brick wall between Lot 3 and Lot 4 (Part B) was constructed and paid for equally by the owners of Lot 3 and Lot 4. This is supported by the handwritten letter dated 7 July 1996 from Ms Turkington who wrote to an undisclosed name, presumably the owner of Lot 3, wherein she stated in part:[22]

Enclosed please find copies of accounts for construction of the brick fence which amounted to a total of $975.66. This is considerably less than we originally had quotes for ($1600), this was due to us doing the initial work - your half share in erecting the fence amounts to $487.83[.]

1. Not long after, on 22 June 1999, the City of South Perth granted planning consent to Mr Vanic and Ms Hoddinott for the proposed 'patio addition to group dwelling'.
2. Sometime before February 2006, the pergola in the courtyard of Lot 4 was demolished. This was because, according to Ms Turkington who wrote to Mr Vanic on 24 February 2006, that he [Mr Vanic] had demolished the pergola in the courtyard of Lot 3 but had not stabilized the remainder of the pergola at Lot 4 with the result it became unsafe and therefore had to be demolished. According to Ms Turkington, three courses of brickwork were added to the existing fence line finishing where the newer constructed brick wall (Part B) commenced, at her cost, to protect her privacy due to the visual intrusion of the gazebo on Lot 3.[23]
3. In the minutes of the meeting held on 28 July 2007, the issue of exclusive use of carports and courtyards was discussed. Despite these minutes, the strata plan has not been updated to register any previous unregistered by-laws or exclusive use by-laws. The minutes reflect the following regarding exclusive use of common property:[24]

1.12 Registration of exclusive use of common ground ie, Carports and courtyards was discussed and measurements to be carried out at next meeting to set the process in motion.

1. Ms Zar submits that exclusive use areas must be properly granted and registered in accordance with the ST Act.
2. Further, Ms Zar says that the installation of a gate or other physical barrier does not constitute formal approval or registration of an exclusive use or right to use the courtyard to the exclusion of all other owners.[25]
3. There does not appear to be written approval by strata company (for example by way of a resolution without dissent) for the brick wall/Colorbond fence (Part A and Part B) to be located on the common property. The same applies in regards to the patio and the BBQ located in the courtyard of Lot 3. However, the actions of the parties and what the strata company appears to have accepted is that each owner has the exclusive use of the rear of their respective lot (the courtyard). This is supported by the evidence of Ms Hoddinott, who stated that following approval of all the other owners, she paid for the rear of Lot 3 to be landscaped and had a gate erected to prevent access to the rear of Lot 3.[26]

1. In conclusion, in this case, the brick wall/Colorbond fence (Part A and Part B), the BBQ and the patio are on the common property. Further, the area behind of each of Lot 3 and Lot 4 (the courtyards) is treated and used as an exclusive use area by the respective owners and occupiers of Lot 3 and Lot 4 without a registered exclusive use by-law. For Lot 3, Ms Hoddinott states she is the only person who has admission to the garden which is behind a locked gate.[27] This is in circumstances where the strata company has not approved any of works done in the courtyard of Lot 3 which is common property.
2. Having determined that the area behind each of Lot 3 and Lot 4 (the courtyards) is common property and that the courtyards are used by each owner for their exclusive use, without an exclusive use by-law registered by the Registrar of Titles, in my view, for the reasons explained below at [154] to [163], it is reasonable to exercise the Tribunal's discretionary powers to make the order sought by Ms Hoddinott under s 200(2)(n) of the ST Act that the strata company is taken to have passed a scheme by-law as a resolution without dissent that the area immediately to the rear of Lot 3 described as a 'courtyard' is for the exclusive use of the occupiers of Lot 3 and the area of immediately to the rear of Lot 4 described as a 'courtyard' is for the exclusive use of the occupiers of Lot 4.

1. The following motion was put to a meeting on 9 December 2024 which three of the four owners passed (motion):

Motion: A levy will be raised, divided equally among all four owners, to cover the cost of repairing or replacing the damaged fence between [Lot 3] and [Lot 4], based on the cheapest available quote.

1. Ms Hoddinott challenges the validity of the motion.[28] In addition, by reference to s 119 of the ST Act, Ms Hoddinott contends that motion is unfairly prejudicial to, or discriminatory against her as the owner of Lot 3 or is oppressive or unreasonable.
2. To understand Mr Hoddinott's position, it is necessary to set out in some detail events going back to 2015.
3. Ms Hoddinott claims that Mr Russell, the then owner of Lot 4, in or about early 2015 obtained building approval from the City of South Perth to build a patio at the rear of Lot 4. Ms Hoddinott contends that Mr Russell dug a trench next to the brick wall and installed plumbing for an outdoor shower. In addition, Ms Hoddinott asserts that Mr Russell used a bobcat to level the rear of Lot 4 and replaced the existing side and back fencing of Lot 4 with grey Colorbond fencing. During this time, Ms Hoddinott asserts there was an accident on or about 23 June 2015 which caused the brick wall to lean and caused damage to her BBQ and patio located in close proximity to the brick wall at the rear of her Lot 3.
4. Mr Scott Seymour of Advanced Specialised Builders inspected the site to investigate the alleged damage to Lot 3 on 8 May 2017. In his report to the strata company's insurer, CHU Underwriting Agencies Pty Ltd (CHU) Mr Seymour stated in part:[29]

A built in barbecue structure is out of level and some brickwork has come loose. This item was disconnected from the gas supply at the time of the inspection.

The dividing boundary brick wall behind the barbecue was found to be out of level and have a notable wobble when tested. There were also cracks noted to bed joints.

The owner [Ms Hoddinott] advised that the neighbouring property had recently had some building works completed. There is a new looking patio structure in the adjoining garden, which is not present on internet based satellite imagery. This structure has only 2 metal posts approximately 1m from the affected area. These would require minimal invasive works to install and would be unlikely to have affected the inspected areas.

The wall was noted to have one central pier and one end pier only. Spaced at approximately 3m these are over spanned and therefore offer insufficient support to the wall.

There was no evidence noted of any policy defined incident affecting the wall.

The barbecue loose bricks were noted to have silicone applied to the face which was laid. This appears to be at least several months old, probably over 1 year.

There was no evidence of impact to the structure, which has leaned as one piece away from the dividing boundary wall.

Only 2 small rusted screws were found to act as ties between the wall and barbecue. The issue to the structure is consistent with subsidence to, or lack of any supporting foundations.

In our opinion all inspected damage is consistent with failure and/or lack of suitable foundations to structures[.]

1. On 15 May 2017, and again on review on 28 July 2017 CHU rejected Ms Hoddinott's insurance claim.[30]
2. Subsequently, on 9 May 2018, Ms Hoddinott sought for Mr Russell, the (then) owner of Lot 4, to get someone out to assess and correct the problem of the brick wall which Ms Hoddinott stated to be 'potentially unsound and leaning'.[31]
3. Nothing appears to have happened until some years later, when on 2 December 2021 Ms Hoddinott told Mr Russell by email that what is required to fix the 'potentially unsound and leaning' brick wall is 'concrete to be poured into footings and supports'.[32]
4. Ms Hoddinott says that Mr Russell accepted responsibility for the damage to the brick wall and told her that he would get it repaired.[33] Further, it is Ms Hoddinott's understanding that Mr Russell made two claims on the strata company's insurer, but both were declined. Further, Ms Hoddinott says that Mr Russell was also unsuccessful in getting his contractors to remedy the damage to the brick wall. It is because of this, Ms Hoddinott objects to the motion which provides for a levy requiring all four lot owners to pay for the cost of repairing or replacing the brick wall.
5. After what she describes as '18 months of hell',[34] Mr Hoddinott contends that Ms Zar seized on the brick wall being on the common property to claim that all of the four owners must contribute to the replacement of the brick wall (Part B) with Colorbond fencing, even though the owners of Lot 1 and Lot 2 and are not affected by the brick wall. Rather, Ms Hoddinott in giving evidence says she is the only owner directly affected by the brick wall dispute.
6. In summary, Ms Hoddinott submits that Ms Zar accepted $5,350[35] from Mr Russell as compensation to repair the brick wall and it therefore does not follow that any other owner in the strata complex is responsible for, and has to pay a share of the cost to have the brick wall repaired. Consequently, Ms Hoddinott urges the Tribunal to set aside the motion.

1. Ms Zar accepts that sometime after 2007, Lot 4 was sold to Mr Russell.
2. Ms Zar submits that it is Ms Hoddinott's unverified position that Mr Russell undertook works at the rear of Lot 4 (on the common property) which resulted in damage to the brick wall between Lot 3 and Lot 4.
3. Ms Zar says her offer to buy Lot 4 was conditional upon Mr Russell completing works associated with the damaged brick wall. This changed when the parties signed a Variation of contract for sale of land on 27 September 2023 which provided:[36]
   1. The Seller agrees to credit an amount of $5,350.00 to the Buyer at settlement being compensation for works required associated with the damaged rear boundary wall.
   2. The Buyer waives the benefit of Condition 2 of the Contract in view of the credit of $5,350.00 being provided by the Seller.
4. When Mr Russell explained to Ms Zar that he was unable to do the repair work before settlement of the sale of Lot 4, Ms Zar said that she agreed to waive Condition 2 of the contract on the basis that he give her a credit for 'one-half of the cost to remedy the brick wall'. Ms Zar explained that this was on the understanding that the owners of Lot 3 and Lot 4 shared the cost to erect the fence equally and therefore the cost for any repairs would also be shared equally.
5. Ms Zar submits that while the costs associated with the allocation of resumed land (the laneway) and the extension of the brick wall (Part B) between Lot 3 and Lot 4 were shared equally between the (then) owners of Lot 3 and Lot 4, that arrangement does not constitute a formal (binding) agreement of exclusive use or alter boundaries under the ST Act. Such 'informal' arrangements, submits Ms Zar, do not bind subsequent owners (such as herself) or the strata company.
6. Ms Zar takes issue with Ms Hoddinott's position that she should be held solely responsible for the damage to the brick wall between Lot 3 and Lot 4. In an email to Ms Sue Barrett (the owner of Lot 1), and the then secretary for the council[37], on 10 April 2024, Ms Zar expressed her concern as follows:[38]

... I was only advised that there was no successful insurance claim. The reason I was presented with, was that it was deterioration of the fence due to age. That is all I was told as there was nothing in the [strata company's] minutes or any other claims against the property so there was no other way of knowing there was a 'dispute' between you and [Mr Russell].

Please stop implying I am at fault. I can not be [held] responsible for actions of someone [seven] years prior if nothing was documented.

1. In summary, Ms Zar submits that the motion is valid as it was for a proper purpose and in the interests of the strata scheme as a whole and urges the Tribunal to confirm the same.

1. It is useful to start by setting out in some detail the expert reports about the brick wall and correspondence between various parties including the strata company's (then) insurer.
2. On 19 September 2023, Major LB Pty Ltd trading as Major Loss Builders prepared a site report for the strata company's insurer. The following was provided in the report:[39]

Damage Sighted

On inspection I found there to be a brick dividing wall that is approximately 2.1 m high to be on a substantial lean with cracking and missing mortar between the bricks. The wall is falling towards the insureds property and is in a state of disrepair. I was also able to view the wall from the neighbouring side at [Lot] three and from this side, the damages and the erosion and the erosion of the mortar is significantly worse.

Cause of Damage

There is no evidence to suggest that the wall has been impacted by an external factor in anyway. The wall in its entirety is leaning towards the insureds property and the wall has been built in two separate stages which identified in the different types of brick and also information provided by the insured. In my opinion, it appears that the footings have moved or sunk, and this has caused the wall to become on a lean. Given the timeline and that the wall has got progressively worse over a long period of time, it is my opinion that this is a case of natural deterioration over a period of time, and not from an insurable event. [...]

Maintenance required

The wall requires removal and rebuilding not maintenance.

Conclusion

In my opinion the damages are the result of long-term sinking or movement of the footing causing the wall to become on a lean and the deterioration of the wall itself. (Added emphasis)

1. According to Ms Hoddinott in her email of 16 March 2024 to Ms Barrett, she stated that both she and Mr Russell made a claim on the strata company's insurance in respect of the 'wall subsidence' issue, but their claims were denied.[40] In a separate email of the same date to Ms Barrett, Ms Hoddinott stated that she had the flowerboxes fixed (on common property in front of Lot 3 and Lot 4) but did not seek half the repair cost from Mr Russell provided that he dealt with the brick wall issue to which he agreed given that 'it was most likely his contractors who had caused the issue' and that she will have 'sufficient costs from the damage to [her] patio and BBQ as it is'. Finally, Ms Hoddinott noted in her email to Ms Barrett that Mr Russell 'reduced the price of [the] property [Lot 4] by [about] $5,000 to cover the cost of wall repairs'.[41]
2. It is Ms Hoddinott's understanding that the original front part of the brick was built in 1968 (Part A) as part of the entire strata complex buildings and that the back part of the brick wall (Part B) was added when Lot 3 and Lot 4 acquired the resumed land (laneway) which occurred in or about February 1995.[42] Further, it is Ms Hoddinott's evidence that she witnessed Mr Russell both excavating and changing the natural level of the backyard of Lot 4 where he removed the existing red brick pavers and used a bobcat like vehicle to excavate the entire backyard to lower, raise or level the land before erecting the patio an installing astro turf.[43]
3. On 19 March 2024, Ms Zar by email to Ms Hoddinott stated in part:[44]

At the end of the day the fence needs to be fixed and you and we need to decide on the type of fence that will go back up.

Once the root cause of the fence becoming damaged has been established then individually we can seek compensation if we deem necessary.

Are you looking for the cheapest option for replacement (colour bond) [sic] or would you want to do brick again and if so what brick would be your preference?

...

I believe once we have the contractors booked in to complete the work we will be able to have the insurance side of things ticked off which is the main focus at the moment.

1. On the same date, Ms Hoddinott replied by email to Ms Zar stating in part:[45]

... The brick wall structure needs to be repaired. Colourbond [sic] is not an option - the wall is part of the building structure and covered by the Building Act not Dividing Fences. As damage was caused by the additions made by the previous owner, under no circumstances will I be contributing. Also I have additional damage to my property as outlined in my previous email which also needs to be addressed. .... As you indicated Dan reduced the price of your property to cover this issue. I have also spent thousands having the flower boxes repaired without claiming from Dan with the understanding that he would be fully addressing the brick wall issue that he agreed was caused by his contractors.

Again, I reiterate, the most likely cause of the damage, to my mind, is the lack of installation of a retaining wall when the level of the ground on your property was lowered. This explains why both brick walls are leaning and towards your side. One brick wall is much newer than the other, therefore this is the logical explanation - it is unlikely that both would have issues with foundations, standard deterioration, etc. at the same time.

1. In reply on the same date, Ms Zar explained to Ms Hoddinott by email in part:[46]

I can not comment on what you and [Mr Russell] have previously discussed or decided and to my understanding it was just a fence that needed to be repaired (what I was told).

I will have to look into the legalities as I was sold the property on the basis that I would just [be] up for half of the fence costs[.]

1. Later that day, Ms Hoddinott replied by email to Ms Zar stating in part:[47]

... I have a stream of correspondence between myself and [Mr Russell]. I can also confirm that the issues arose due to his contractors. I believe it was in 2019 (but am unsure of this) that his contractors came over the fence claiming to be fixing my BBQ, which they said they had damaged. Unfortunately, I could not stick around as I was going on holiday that day and had to be at my scheduled departure venue by a certain time. I returned from holiday to find that my BBQ had been cut away from the wall as, presumably, the entire structure had become unstable. Subsequently there has been further subsidence - the gas line pulled out of the BBQ and my patio is leaning badly[.]

1. On 20 March 2024, Ms Hoddinott explained to Ms Zar the history of the resumed land (laneway) and the height difference of the back of Lot 3 and Lot 4 as follows:[48]

... during time of owner previous to [Mr Russell], we were allocated the laneway at the back of the property. There was height difference - I left heights as were with step down to laneway section. Unit 4 levelled the entire back garden thus it should be lower overall. It could be as simple as this. ... the soil around the wall would have been disturbed by the work Dan did, exacerbating the problem.

Note also that the front brick wall was constructed in 1968 as part of the entire structure. The back brick wall was added when we acquired the laneway and would be about ½ the age or so.

1. On 21 March 2024, Ms Zar by email informed Ms Hoddinott as follows:[49]

... I will leave it with you to pursue proving that the cause of the fence damage is 100% the fault of works completed by the previous owner and that a retaining wall was required at the time of the works.

...

From my side I am more than happy to accept that the fence damage is a cause of multiple factors, including but not limited to:

- poor footings at time of initial installation

- standard deterioration over time

- Works completed

- Trees & associated root systems

and thus the responsibility of both parties and will be happy to pay for part of the costs to rebuild the fence with bricks[.]

1. On 21 March 2024, Ms Hoddinott by email to Ms Zar explained in part:[50]

... I do not believe removing and rebuilding the wall would solve the problem. My concerns are that it is meddling with the existing structure which is incorporated into the building and therefore could lead to additional issues. There may be an "avalanche" of additional subsidence and it does not correct the subsidence issues on my side - BBQ and patio. If my leaning patio is not corrected then it is just a matter of time before it falls on the brick wall (new or old)[.]

1. On 22 March 2024, Ms Zar by email to Ms Hoddinott stated in part:[51]

I think the first step is to work out what needs to be done and at what cost and then I/we can pursue where to get the costs recovered.

...

With regards to the reference that you don't feel it's correct to re-build the fence 'as it is' can you please provide some form of statement from someone that has professionally assessed the fence?

I have not had this information proposed to me and all inspections have stated that a re-build would be [the] most appropriate and the only concern raised was if there were roots that might need to be removed for new foundations to be laid. No one has commented that I need any other aspects of my yard changed.

...

I am not the cause of the issue in any way and am doing all that I can to be [of] assist[ance]so that we can get what should have been fixed years ago sorted out[.]

1. On 28 March 2024, Mr John Burton of Basic Structural Building inspected the brick wall and prepared an Inspection Report for the strata company care of Ms Barrett. The invoice of $275 for the report was paid for by Ms Hoddinott.[52]
2. Mr Burton opined:[53]

Dividing wall between [Lot] 3 and 4 is leaning causing severe cracking.

Wall appears to be [relatively] stable at this present time and I do not recommend at this stage trying to prop the wall as I believe that this could [unintentionally] make the wall more unstable.

However the wall should be removed as soon as possible.

Prior to this I strongly recommend a Structural Engineer assess the reasons why this has happened and to advise if damage has occurred to any other structures. (Added emphasis)

1. On 2 April 2024, Ms Hoddinott made it clear by email to Ms Zar that:[54]

As the owner of Unit 4 you are fully responsible for rectifying the issues at your own expense. In this regard I insist upon assurance that removal of the wall will not cause additional damage, this will require engagement of a structural engineer by yourself, and also that, if the wall is replaced, it is with the closest match with what is there, that is, including matching brick colour.

1. On 9 May 2024, Mr Lukman Jamal of B Waddell Consulting Engineers inspected the existing brick wall between Lot 3 and Lot 4. In summary, the report provided:[55]
   • the masonry wall has a significant lean;
   • the wall has failed at two locations;
   • it is recommended that the brick wall be replaced from 1500 mm from the existing residence to the rear boundary of the property; and
   • the existing patio in Lot 3 has failed with posts showing a significant lean.
2. On 16 October 2024, Mr Scott van Ierland, acting coordinator urban planning for the City of South Perth wrote to Ms Zar regarding a complaint received alleging unapproved ground level changes to Lot 4. In the letter Mr Ierland stated that no remedial action is required in relation to the ground level changes and the patio addition at Lot 4.[56]
3. At the council meeting on 9 December 2024, the minutes reflect the following regarding the brick wall:[57]

Dividing Fence

The issue of payment for the repairs/replacement of the fence between [Lot] 3 and [Lot] 4 was raised.

An inspection from Joe Divine of Jetis Building Services had been conducted at 10:30 am on 9th of December. Joe has confirmed that there are 2 separate sections of the fence between the outdoor areas of these units and will provide separate quotes to repair the existing brick fences.

It was confirmed by the Strata Title at Landgate that the fence is designated as common property. As such, and due to the inability of the owners of [Lot] 3 and [Lot] 4 to reach an agreement on how to proceed with the repairs, the matter has been escalated to Strata for assistance.

This action has been taken as the unresolved fence repairs are currently preventing the acquisition of building insurance.

Motion: A levy will be raised, divided equally among all four owners, to cover the cost of repairing or replacing the damaged fence between [Lot] 3 and [Lot] 4, based on the cheapest available quote.

In Favour: Sue Barrett, Kira Napier, Nellie Zar

Against: Susan Hoddinott

Nellie Zar, as the appointed Secretary, will collate quotes for a [C]olorbond replacement (from the point of failure) as well as the repair option provided by Joe Devine. She will then present the costs to the owners with the confirmed levy amount.

Susan confirmed that she will be seeking an [injunction] if Colorbond is selected as the fence replacement option.

1. On 11 December 2024, Jetis Building Services (Jetis) provided quotation JBS/25/108 to Ms Hoddinott for the remediation of the brick wall between Lot 3 and Lot 4. The scope of works provided by Jetis is as follows:[58]

Section A: The area of wall immediately adjacent to the decked area of [Lot] 4 and the pergola area of [Lot] 3 - Supply and install a bespoke temporary propping arrangement to support and simultaneously manipulate this section of the wall. The aim of the manipulation of the components is to remove them back towards their original position, to as near vertical alignment as general site conditions and the structure allows. To include excavating 5no. isolated small access pits, removing any root matter encountered, locally compacting the adjacent soil then installing 5no. Isolated pad footing using high strength concrete with steel reinforcement, to underpin and support the associated foundations of the structure, thereby simultaneously increasing the load bearing capacity of the surrounding soils in the immediate vicinity. For the sum of $3,587.00

Section B: The area of wall immediately adjacent to the external shower/shed area of [Lot] 4 and the pond area of [Lot] 3 - Supply and install a bespoke temporary propping arrangement to support and simultaneously manipulate this section of wall. The aim of the manipulation of the components is to move them back towards their original position, to as near vertical alignment as general site conditions and the structure allows. To include excavating 5no. isolated small access pits, removing any root matter encountered, locally compacting the adjacent soil then installing 5no isolated pad footings using high strength concrete with steel reinforcement, to underpin and support the associated foundations of the structure, thereby simultaneously increasing the load bearing capacity of the surrounding soils in the immediate vicinity. For the sum of $3,587.00

Note: To enable Section B to proceed, a cluster of tree branches and the associated in-ground root system of that cluster will need to be severed, dug out and removed. This work would be carried out on the day before the main works commenced [sic]. For the additional sum of $747.00

Option: Crack-Stitching - Grind out isolated sections of cracked external masonry to Section A and install the following components using a proprietary epoxy resin: 6no. (in total) 6mm stainless steel crack-stitching rods, including making good to within one millimetre of the adjacent surfaces, ready for filling and/or decoration (by others) to the client's desired finish and specific choice of colour.

To include brushing out and preparing the isolated cracks to the work area (of 1mm width or greater) and supplying and installing JBS DRETS 34/10 epoxy binding compound, to fill, bind and seal, topped-off with a colour toned finishing compound. Please note this is not a repointing exercise, it is infill only to the cracks, to reintroduce full contact and integrity to the brickwork components. As the wall and mortar have been subject to general weathering, an inconsistent, blended colour appearance is to be expected, this will likely blend in over time as further weathering occurs to the general area.

If this work is carried out during the same site visit as the primary work, then the cost will be an additional $2,378.00

Please Note: The site inspection fee rebate ($280.00) will be deducted from the overall total of the selected Scope of Work.

1. On 4 January 2025, Ms Zar in an email to the owners wrote in part:[59]

Please find attached details of the special levy being raised for the repair of the fence between [L]ots 3 [and] 4.

After reviewing the information provided by Jetis Building Company I have offered to pay for the additional amount (on top of the special levy) for the Section A fence to be repaired and not replaced. Section B however will still be replaced with colour bond by Ocean Fence management. (Added emphasis)

1. On 5 January 2025, Ms Hoddinott replied to Ms Zar's email. Ms Hoddinott stated:[60]

[I] reject the motion for any replacement of any part of the fence with Colourbond. It must be repaired like-for-like. The AGM motion is not in accordance with the rules under the [ST] Act and you can take this as a valid objection lodged within the required 28 days of the AGM. Furthermore I reject that the corporate body is in any way responsible for any payment for repair as the damage was caused by the building work of the previous owner of [Lot] 4 and the current owner of [Lot] 4 has been compensated accordingly, and is therefore liable for the full cost of the repair and also expect reimbursement for the additional incidental costs I have incurred.

1. On 17 January 2025, Ms Zar in an email to the owners referred to a quote from Federal Tuckpointing who opined:[61]

The metal rods inside the brick wall have rusted (not uncommon for a fence that is 30+ years old) and this has made the fence weak enough that the tree roots and movement have gradually been able to push the fence. This is why we are seeing a greater lean in section B and less lean as the wall gets closer to the main building[.]

1. Ms Hoddinott in response on the same date stated:[62]

As previously advised the cause is the building work done by Dan. The rusted ties are after the fact and would not have been apparent without the work done by Jetis and the exposure to weather occurring since the building work. The greater lean on the back section is understandable due to the outdoor shower being attached to the wall and the subsequent removal. Any interaction with the tree is also after the fact and opportunistic - it could not occur without the other issues.

1. On 31 January 2025, the City of South Perth issued the Building Order under s 110 of the Building Act 2011 (WA).[63] The Building Order provides the following concerning the brick wall and the patio:

Incidental structures on the Property, namely a masonry wall located on the common property and extending in an easterly direction from the rear of the boundary between Lots 3 and 4 (Wall) and a timber framed patio located on the common property on the eastern side of Lot 3 (Patio), are reasonably believed to be in a dangerous state because:

(a) The wall has rotated on its base and is leaning to the south by up to 120mm at the top of the Wall; and

(b) The posts to the Patio have failed with the result that the Patio had rotated and is leaning to the south.

1. The Building Order requires the strata company to undertake the following works:
   1. Pursuant to section 112(2)(g)(v) of the [BA], you are required within 28 days of being given this Order to repair the portion of the [brick] Wall identified as 'Section A' in the 'Jetis Building Services Quotation Reference: JBS/25/108 - Revision 1' dated 7 January 2025 (Quote) by carrying out all of the works specified in the Quote, including the works specified in the 'Option: Crack Stitching' part of the Quote.
   2. Pursuant to section 112(2)(g)(vi) of the [BA], you are required within 28 days of being given this Order to demolish and remove:

(a) the remaining portion of the Wall (that is, the portion other than the portion identified as Section A in the Quote); and

1. Ms Hoddinott continues to object to the replacement of part of brick wall (Part B) with a Colourbond fence. In her email of 31 January 2025, Ms Hoddinott stated in part:[64]

[I] reject the replacement of the existing Dividing Wall with a Colourbond fence. They are not the same and do not provide the same function. Neither is it legal, on many counts to have such a vote. Nellie accepted compensation for repair of the wall and therefore she should pay the entire amount. Therefore I suggest she negotiate with Jetis for the entire amount to repair both walls. In addition, I believe there may be an issue if not directly repaired (demolition not required) due to plumbing fixtures and electrical conduit.

1. On 11 February 2025 Ms Hoddinott sought an urgent injunction to prevent the demolition of the brick wall (Part B) between Lot 3 and Lot 4. The injunctive relief sought by Ms Hoddinott was not granted by the Supreme Court of Western Australia.[65] Subsequently, on 14 February 2026, the brick wall (Part B) was demolished and replaced by a Colourbond fence.
2. On 28 February 2025, Ms Sandy Trosic, Compliance Officer, Development Service from the City of South Perth informed Ms Zar, by email, in part:[66]

[T]he City could consider a certified building permit application for works proposed to be undertaken to make the patio structurally adequate. The City would also require information confirming when works are scheduled to be undertaken.

1. The above was confirmed in a letter to Mr Vanic and Ms Hoddinott on 31 March 2025 by Ms Courtney Wynn of the City of South Perth as follows:[67]

[S]hould the strata wish to retain the patio on the common property adjacent to [Lot] 3, that remedial action to make the patio structurally adequate would need to be detailed in a certified building permit application to the City. Alternatively, the City would expect removal of the patio to comply with the building order issued by the City.

Prior to issuing the building order the City had requested a structural engineers report to confirm the structural soundness of the patio, however the City's records indicate that this information was not received. As such, the City's position remains unchanged that the patio either requires removal or alternatively, building approval is required for any structural repairs to the patio. (Added emphasis)

1. In the same letter, Ms Wynn stated in regards to the brick wall (Part B):[68]

With respect to the removal of a section of wall between [Lot] 3 and 4, [...] I clarify that the City ordered the removal of Part B of this wall as documentation received by the City indicated that remedial works could only be undertaken to this section of the wall if adjacent vegetation was removed. As the City was advised that vegetation would be cut back, but retained, the Building Order for repair of the 'Section A' wall and removal of 'section B was issued. (Added emphasis)

1. On 1 April 2025 Mr Hoddinott by email to Ms Wynn stated in part:[69]

I would also deny that my patio is "common property". It is a fixture added, after the fact, and fully funded by myself as the lot owner. It is mine and could be dismantled and taken elsewhere if I so desired. Your compliance data should verify this. Otherwise the building approval would have been obtained by the strata company and not the lot owner. Furthermore I would disagree with your common property interpretation as [s]ection 2A(2A) of the [ST Act] clearly states that single tier properties are to be treated as survey strata for purposes of the [A]ct. That is, the Dividing Wall is common property but the property outside of this is not. It is the property of the lot owner. The patio is not and never has been part of the original common property structure.

1. Besides Ms Hoddinott strongly asserting that Mr Russell is responsible for the damage to the brick wall, there is no evidence before the Tribunal to support that position.
2. It is common ground, and I find that the (then) owners of Lot 4 and the owner of Lot 3 equally shared the cost of constructing the brick wall (Part B) following the divesture of the resumed land (laneway) to the strata company as common property.
3. Further, as previously stated, and is repeated here, I find that the owners of both Lot 3 and Lot 4 regard and use the rear of their respective lots (the courtyards) to the exclusion of all other owners in circumstances where the area is common property and there is no exclusive use by-law in place. That is, nothing has been registered on the strata plan giving the owners of Lot 3 and Lot 4 exclusive use of the rear of their respective lots (the courtyards).[70]
4. Ms Zar is of the view that the brick fence issue is the responsibility of both herself and Ms Hoddinott.[71] Ms Hoddinott strongly refutes this stating that Ms Zar is 100% responsible for all costs of repairing the brick wall as she was compensated by Mr Russell.[72] In contrast, Ms Hoddinott is of the view that each lot owner is responsible for the garden and carport associated with their lot, even though those areas are on the common property.[73]
5. In an effort to resolve the brick fence issue and the insurance issue, Ms Zar in her email to Ms Hoddinott on 1 September 2024 stated in part:[74]

... I am happy to go with your choice provided we are responsible for the works on our respective sides of the fence and a 50% split in the costs associated with the fence[.]

1. Of the $5,350 credit received by Ms Zar from Mr Russell on the purchase of Lot 4, Ms Zar says she only had about $2,000 remaining to be put towards the replacement of brick fence as more than $3,000 was spent on obtaining the structural engineers report (which Ms Hoddinott requested) and seeking legal advice as Ms Hoddinott kept insisting that she (Ms Zar) is liable for the whole fence.[75]
2. It is uncontroversial and I find that the brick wall (Part A) was repaired by Jetis Building Services and that Ms Zar paid $5,685 for that work. Further, it is common ground and I find that the brick wall (Part B) was demolished and replaced with Colorbond fencing on 14 February 2025 and that Ms Zar paid $2,489 for this work and has been reimbursed $622 by each of the owners of Lot 1 and Lot 2. Finally, it is uncontroversial and I find that Ms Hoddinott has not paid any amount towards the repair of the brick wall (Part A) and the replacement of the brick wall (Part B).

1. In conclusion the brick wall (Part A and Part B) was not repaired nor replaced before Mr Russell sold Lot 4 to Ms Zar on 1 September 2023. However, the brick wall (Part A) was repaired, but the brick wall (Part B) was demolished to comply with the Building Order and was replaced with a Colorbond fence.
2. Mr Russell was not called to give evidence and therefore Ms Hoddinott's testimony about what Mr Russell told her cannot be verified.
3. It is clear that Ms Hoddinott and Ms Zar take very different positions regarding the brick wall (Part A and Part B). In particular, Ms Hoddinott strongly objects to the motion that all the owners are required to equally cover the cost of the repair/replacement of the brick wall even though she accepts that brick wall is on the common property.
4. In my view, for reasons explained below at [165] to [171], to resolve the scheme dispute about the brick wall, it is reasonable, in my view, to exercise the Tribunal's discretionary powers under s 200(2) of the ST Act to set aside the motion to raise the levy.
5. I turn now to the last issue which concerns insurance.

1. Ms Hoddinott accepts that insurance is required. She stated as much in an email to Ms Barrett on 23 July 2024 as follows:[76]

... Risking massive subsidence without insurance is insane.

1. Ms Hoddinott expresses the view that having a by-law registered would solve the insurance issue because each lot would be individually insured.[77]
2. On 6 August 2024 Ms Hoddinott sent an email to the other lot owners stating that she had secured insurance for the strata company from Suncorp of $4,509.32 for a period of 12 months from 12 August 2024.[78] Ms Hoddinott paid 25% of the premium, that is $1,127.33.[79] Because of this, Ms Hoddinott seeks a reimbursement from the strata company of 75% of the premium she paid, or $875, because none of the other owners paid anything and therefore based on her payment, Suncorp provided insurance for the strata company up to about December 2024.

1. Ms Zar's evidence is that she was concerned that the insurance would not cover them if the situation about the brick wall was not fully disclosed to the insurer.[80] Because of this, Ms Zar said she did not contribute to the insurance policy obtained by Ms Hoddinott.
2. For similar reasons to those given by Ms Zar, Ms Napier said that she also did not contribute to the insurance policy obtained by Ms Hoddinott.

1. The lack of required insurance by the strata company is of serious concern. Obtaining insurance has been complicated in this case because of the brick wall issue and the Building Order which is still in place.
2. Ms Napier describes the situation as follows:[81]

The [council] has been without building insurance since 1 May 2024, primarily due to the ongoing lack of cooperation surrounding repairs to common property. This situation has left all owners exposed to risk and created unnecessary administrative and financial strain on the strata.

1. The following is a summary of the correspondence concerning obtaining insurance for the strata company.
2. On 18 March 2024 Ms Paris Butler, a client service officer, at Gallagher by email wrote to inform Ms Barrett that the insurer requires the following information to continue to offer insurance:[82]
   1. A scope of works for rectification of the leaning wall to be agreed on by the Owners with repair scheduled;
   2. Safety bollards/bracing and signage to [be] erected around the wall immediately.
3. On 19 March 2024, Ms Zar by email to Ms Hoddinott stated in part:[83]

... At the end of the day the fence needs to be fixed and you and we need to decide on the type of fence that will go back up.

...

I believe once we have the contractors booked in to complete the work we will be able to have the insurance side of things ticked off which is the main focus at the moment.

1. On 22 March 2024, Mr Patrick Johnson, a client service officer at Gallagher in an email to Ms Barrett wrote in part:[84]

... it is my understanding that your current insurer, SCI, has requested the following conditions on the retaining wall prior to offering renewal terms.

- A scope of works for rectification of the leaning wall to be agreed on by the Owners with repair scheduled;

- Safety bollards/bracing and signage to [be] erected around the wall immediately

Unfortunately, without this information SCI will officially decline to offer renewal terms[.]

1. On 28 March 2024, Mr John Burton of Basic Structural Building inspected the brick wall and prepared an Inspection Report for the strata company care of Ms Barrett. The invoice for the report was paid for by Ms Hoddinott.[85] Mr Burton's opinion is set out above at [86].
2. On 9 May 2024 Lukman Jarmal of B Waddell Consulting Engineers inspected the existing brick wall between Lot 3 and Lot 4. Mr Jamal's opinion is set out above at [88].
3. On 31 January 2025, the City of South Perth issued the Building Order as set out above at [96] to [97].
4. To comply with the Building Order, the brick wall (Part A) was repaired by Jetis Building Services. On 14 February 2025 the brick wall (Part B) was demolished and replaced with a Colorbond fence.
5. The Building Order requires the patio on the common property at the rear of Lot 3 to be demolished and removed. At the date of the hearing, the patio remains on the rear of Lot 3.
6. I now turn to set out the relevant provisions of the ST Act as they relate to insurance.
7. Sch 2A of the ST Act sets out special provisions that apply to single tier strata schemes. Part 5 of Sch 2A is titled 'Insurance' and comprises clauses 53A to 53E as follows:

(a) to scheme are to a single tier strata scheme; and

(b) to strata company are to a strata company for such a scheme; and

(c) to an owner of a lot are to an owner of a lot in such a scheme.

53B. Insurance for lots in single tier strata schemes

(ii) damage to property, death, bodily injury or illness for which the owner of a lot in a scheme could become liable in damages;

(b) the occurrences to be insured against by the owner of the lot in relation to those matters; and

are, subject to this clause, at the discretion of the owner of the lot.

(2) A strata company for a scheme may determine, by ordinary resolution, that it is a function of the strata company to insure in respect of the matters referred to in subclause (1), and may at any time, by ordinary resolution, revoke that determination.

(3) While such a resolution is in force, the strata company must comply with clause 53D.

(4) If insurable assets are wholly within common property, whether there is insurance in respect of the assets is not at the discretion of the owner of a lot.

53C. Insurance for common property in single tier strata schemes

(a) insure and keep insured insurable assets that are within the common property; and

(b) effect and maintain insurance in respect of damage to property, death, bodily injury or illness for which the owners of lots in the scheme could become liable in damages as holders of the common property.

(2) The strata company does not have the obligations described in subclause (1) if -

(a) there is no common property in the scheme except -

(i) cubic space in which there are no insurable assets above or below the horizontal boundary of any lot; or

(ii) fencing on the boundary of the parcel or any lot or on the boundary of temporary common property;-

(b) the strata company has by resolution without dissent determined that subclause (1) is not to apply to the scheme.

(3) A resolution under subclause (2)(b) remains in force until -

(4) The owner of a lot may, at any time after the passing of the resolution, serve written notice on the strata company or, in the case of a 2-lot scheme, on the owner of the other lot, that the owner requires that subclause (1) apply to the scheme.

(5) If the owner of a lot serves a notice under subclause (4), the resolution under subclause (2)(b) ceases to have effect at the end of the period of 1 month beginning on the day on which the notice was served.

(6) While a resolution under subclause (2)(b) is in force, the following are at the discretion of the owner of the lot -

(i) the share of the owner of a lot in insurable assets in the scheme that are within the common property; or

(ii) damage to property, death, bodily injury or illness for which an owner of a lot in the scheme could become liable in damages as the holder of a share in the common property;

(b) the occurrences to be insured against by the owner of a lot in relation to those matters;

53D. Strata company's obligations if it has insurance function in single tier strata scheme

(a) a resolution is in force under clause 53B(2); or

(b) in accordance with clause 53C, a strata company has the obligations described in subclause (1) of that clause.

(2) This clause also applies if a strata company passes an ordinary resolution to insure common property that it is not obliged to insure by reason of clause 53C(2)(a).

(a) insure and keep insured insurable assets to which its obligation extends against fire, storm and tempest (excluding damage by sea, flood or erosion), lightning, explosion and earthquake -

(ii) to replacement value, up to, for an event of a specified kind, a maximum amount specified in the contract of insurance that is a reasonable limitation in the circumstances;

(b) effect and maintain insurance in respect of damage to property, death, bodily injury or illness for not less than $10 000 000 or such other amount as may be specified in the regulations in place of that amount.

(4) It is a defence to a charge of an offence against subclause (3) for a strata company to prove that, despite having taken all reasonably practicable steps available to it to comply with that subclause, no insurer is willing to enter into a contract of insurance, on reasonable terms, that meets the obligation imposed by that subclause.

53E. Recovery of premium by strata company or owner if no administrative fund in single tier strata schemes

(a) in accordance with section 140, an administrative fund is not maintained by a strata company under section 100(1)(a); and

(b) the strata company or the owner of a lot receives notice of the amount of any premium or other charge for insurance under clause 53D,

the strata company, or the owner, may give notice in writing of that amount to the owner of each lot in the scheme, or each other owner, and require the owner to pay a share of the premium or other charge before a specified time.

(a) a sum equal to the same proportion of the amount as the unit entitlement of the lot bears to the sum of the unit entitlements of all the lots in the scheme; or

(b) if applicable, a sum fixed under the scheme by-laws.

(a) notice has been given to the owner of a lot under subclause (1); and

(b) the amount of the owner's share has not been paid to the strata company or the insurer before the specified time,

that amount becomes a debt due by the owner to the strata company and may be recovered by it in a court of competent jurisdiction.

(4) If the amount of an owner's share has become due to the strata company but has not been paid, the owner of another lot may -

(b) recover the amount as a debt on application to the Tribunal.

1. Schedule 1 of the Strata Titles (General) Regulations 2019 (WA) (Regulations) sets out special provisions that apply to single tier strata schemes. Reg 15 is titled 'Insurance' and provides as follows:

Section 97(2) applies to any insurance a strata company is required to keep under Schedule 2A clause 53C or 53D in the same way as it applies to any insurance a strata company is required to keep under section 97(1).

1. Section 97(1) and 97(2) of the ST Act stipulates that the strata company must have insurance as follows:

(1) A strata company must ensure that the following insurance is in place for the strata titles scheme -

(a) all insurable assets of the scheme must be insured against fire, storm and tempest (excluding damage by sea, flood or erosion), lightning, explosion and earthquake -

(ii) to replacement value up to, for an event of a specified kind, a maximum amount specified in the contract of insurance that is a reasonable limitation in the circumstances;

(b) the strata company must be insured against damage to property, death, bodily injury or illness for which the strata company could become liable in damages to an amount of not less than $10,000,000 or, if some other amount is determined under the regulations, that amount.

1. The owner of a lot in a survey-strata scheme is responsible for insurance of the kind referred to in paragraph (a) for infrastructure on the lot.
2. The owner of a lot is responsible for insurance of the kind referred to in paragraph (b) for damages for which the owner could become liable.

(2) However, if a strata company has taken all reasonably practicable steps available to it to obtain the required insurance but no insurer is willing to enter into a contract of insurance on reasonable terms that meets the requirements, the strata company must obtain whatever insurance it can obtain on reasonable terms that most closely meets the requirements.

1. The term 'insurable asset' of a strata titles scheme is defined in s 3 of the ST Act to mean:

(i) the common property of the scheme (including the fixtures and improvements on the common property); or

(ii) the parts of scheme buildings that comprise lots in the scheme (including the paint and wallpaper); or

(iii) anything included in this definition by the regulations;

(i) fixtures or improvements on the common property that are not themselves common property; or

(ii) carpet and temporary wall, floor and ceiling coverings in a scheme building; or

(iii) fixtures removable by a lessee at the expiration of a tenancy; or

(iv) anything excluded from this definition by the regulations;

1. Regulation 70 of the Regulations is titled 'Insurance' and provides at reg 70(1) that the term 'required insurance' means insurance a strata company is required to obtain under s 97 of the ST Act.
2. The Regulations do not specify any thing that is to be included or is excluded from the definition of 'insurable asset'.
3. On the evidence before the Tribunal, I find that the strata company has not made by resolution without dissent that it is not required to insure and keep insured insurable assets that are within the common property and to effect and maintain insurance in respect of damages to property, death, bodily injury or illness for which the owners of lots in the scheme could become liable in damages as holders of the common property. Such a resolution without dissent needs to satisfy the requirements of cl 53C(2)(b) and cl 53C(3) of Sch 2A of the ST Act.

1. It is uncontroversial and I find that the strata company failed to have the required insurance in place as required by cl 53C and cl 53D of Sch 2A of the ST Act from the date when the premium paid by Ms Hoddinott of $1,127.33 on or about 9 August 2024 to when it ran out which was in or about December 2024. As at the date of the final hearing, the strata company continues to fail to have in place the required insurance.
2. While I acknowledge Ms Zar's and Ms Napier's position that in their view, full disclosure about the brick wall had not been made to Suncorp by Ms Hoddinott and therefore they (Ms Zar and Ms Napier) refused to pay any of the insurance premium, taking such a position is unacceptable and is in breach of cl 53D of Sch 2A of the ST Act. This is because all reasonably practical steps available were not taken by the strata company to obtain the required insurance. For example, Ms Zar and the other owners, when they decided not to pay any premium to Suncorp, failed to engage in seeking alternative insurance. The position taken by Ms Zar is that until the Building Order is complied with, the insurer would not offer the strata company insurance. There is no evidence before the Tribunal that no insurer is not willing to enter into a contract of insurance with the strata company on reasonable terms, even if the Building Order remains in place.
3. In conclusion, I am not satisfied on the evidence before the Tribunal that Ms Hoddinott failed to make full disclosure to Suncorp as asserted by Ms Zar and Ms Napier. Finally, I find the strata company failed to have the insurance coverage as required by cl 53C and cl 53D of Sch 2A of the ST Act and continues to fail to have the required insurance in place.
4. In my view, as explained later in these reasons at [172] to [178] below, it is reasonable, in my view, to exercise the Tribunal's discretionary powers to make an order under s 200(2)(l) of the ST Act to require the strata company to obtain insurance coverage as required under cl 53C and cl 53D of Sch 2A of the ST Act for the strata complex for the current insurance period and going forward and a separate order under s 200(2)(o)(ii) of the ST Act to require the strata company to reimburse Ms Hoddinott the amount of $845 [75% x $1,127.33] for insurance she paid Suncorp in respect of insurance for the strata complex.
5. Finally, I now turn to set out my reasoning why it is reasonable in the circumstances of this case to exercise the Tribunal's discretionary powers to make declarations and/or orders to resolve the scheme dispute.

Exercise of Tribunal's discretionary powers to resolve the scheme dispute

Principles in exercising the Tribunal's discretion to make declarations and orders

1. The power of the Tribunal to make orders to resolve a scheme dispute or the proceeding under s 200(1) of the ST Act is a statutory discretionary power. Similarly, the power of the Tribunal to make a declaration under s 199(3) of the ST Act is a statutory discretionary power.
2. The Tribunal may make a declaration concerning a matter instead of an order or in addition to any order the Tribunal makes in the proceeding (s 199(1) of the ST Act).
3. The starting point in considering discretionary powers is to consider the term 'discretion'. It was explained in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [19] that the term 'discretion' refers to:

... a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result". Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable ... [or] it may be quite narrow[.]

1. The discretion conferred by s 199(3) and s 200(1) of the ST Act to make a declaration or an order is not limited by any mandatory considerations: Carr and The Owners of 252 Cosy Corner Road Kronkup Survey-Strata Scheme 55030 [2024] WASAT 132. However, that does not mean that the statutory power is not without limitation. As stated in Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li) at [23] every statutory discretion, however broad, is constrained by law.
2. Legal reasonableness provides the boundaries within which a decision-maker, such as the Tribunal, has a genuine free discretion: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505 and Li at [23]. 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 a discretion to make an order: Li at [67]. The scope and purpose of the ST Act provides limits on the exercise of the statutory power by the Tribunal. By its long title, the ST Act is to provide for, among other related purposes, for the subdivision of land by strata titles schemes, the creation of strata titles and the governance and operation of strata titles schemes.
3. The Tribunal's statutory discretionary power is subject to the presumption of law that the legislature intends the power to be exercised reasonably Li at [23]. Section 199(3) and s 200(1) of the ST Act are to be construed accordingly. In Kruger v The Commonwealth of Australia [1997] HCA 27; (1997) 190 CLR 1 at 36 this was emphasised as follows:

[W]hen a discretionary power is statutorily confined on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised[.]

1. In exercising the Tribunal's discretionary statutory powers to make an order under s 200(2) of the ST Act, the Tribunal must ultimately take all considerations in the case into account. This may include the following considerations (not an exhaustive list):[86]

(b) the detriment to any owner and the extent, if any, to which it could be said to derogate from the owner's proprietary rights;

(d) the formalisation of longstanding informal arrangements;

(e) the creation of certainty between owners and thereby reducing disputes; and

1. Similarly, in exercising the Tribunal's discretionary statutory powers to make a declaration under s 199(3) of the ST Act, the Tribunal must ultimately take all considerations in the case into account. This may include the following considerations (not an exhaustive list):[87]

(a) whether the proceeding involves the determination of a real question that is not abstract or hypothetical;

(b) whether the declaration will produce some real and foreseeable consequences for the parties;

(d) whether the proceeding involves a matter of public interest; and

(e) whether the circumstances call for the marking of the Tribunal's disapproval of contravening conduct.

1. I adopt and have applied the above considerations in deciding whether or not to exercise the Tribunal's discretionary powers to make declarations and/or orders to resolve the scheme dispute in this case.

1. In considering whether to exercise the Tribunal's discretionary powers, I note that the management of the strata company is best left to the strata company and that the Tribunal should not too readily impose its own views: Hopkins and Clayton [2007] WASAT 255. However, where there is a deadlock between owners in a strata complex, the ST Act intends that there be a practicable means to break that deadlock: The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1. There is of course no requirement for an owner to assist another owner or to assist the strata company, or that an owner acts altruistically or sympathetically at the expense of their own interests: Ainsworth v Albrecht [2016] HCA 40; (2016) 261 CLR 167.
2. The orders sought by Ms Hoddinott in respect of the common property issues is an order under s 200(2)(n) of the ST Act that the strata company is taken to have passed as a scheme by-law as a resolution without dissent the area immediately to the rear of each of Lot 3 and Lot 4 (the courtyards) is for the for the exclusive use of the occupiers of Lot 3 and Lot 4 respectively (see above at [20]).
3. In considering the interests of Ms Hoddinott, Ms Zar and the strata company (which has the responsibility to control and manage the common property for the benefit of all the owners), it is reasonable and necessary, in my view, to intervene to break the impasse between Ms Hoddinott and Ms Zar. The intervention is by way of exercising the Tribunal's statutory discretionary powers to make a declaration under s 199(3) of the ST Act and orders under s 200(2) of the ST Act to resolve the common property issues. The reasons for this are as follows.
4. First, there is a real issue concerning exclusive use of the 'courtyard' to the rear of each of Lot 3 and Lot 4. The issue in respect of common property at the strata complex is a live issue, and has been at least an issue of discussion since 1996 as reflected in the minutes of meeting held on 18 September 1996 (see above at [45]). There is also a real issue concerning the patio at the rear of Lot 3 which is the subject of the Building Order and at least from Ms Zar's position is the reason why the strata company does not have the required insurance in place. These issues are not a hypothetical or theoretical issue.
5. Second, Ms Hoddinott who seeks the orders has a real interest in this matter. This is because she incurred cost to install the patio, BBQ and other structures in the 'courtyard' at the rear of Lot 3 which she asserts are her property.[88] In addition, Ms Hoddinott expended money to obtain a report and a quote to repair the brick wall. These total $555 for the report from Mr Burton ($275) and the quote from Jetis ($280). Ms Zar also has a real interest in this matter as she has expended money to have the brick wall (Part A) repaired and she along with the owners of Lot 1 and Lot 2 have contributed to the cost to demolish the brick wall (Part B) as required by the Building Order and to have installed the Colorbond fence. The cost incurred by Ms Zar are $5,685 in respect of the brick wall (Part A) which is to be reduced by the credit of $5,350 per the Variation of contract for sale of land,[89] $2,489 in respect of the brick wall (Part B) which is to be reduced by the contribution of $622 received from each of Lot 1 and Lot 2. In addition, Ms Zar expended $858 on the engineering report from B Waddle Consulting Engineers.
6. There are other costs Ms Hoddinott claims for repairs required to her BBQ and patio which I have not considered. This is because I am not persuaded on the expert reports before the Tribunal that the brick wall caused the damage to the BBQ and patio and in any event there is no evidence before the Tribunal that the costs of $2,800 claimed (see above at [20]) have been incurred or paid for by Ms Hoddinott. Separately, in relation to the legal costs claimed by Ms Zar, I have not considered them in this application, however, they may be relevant in an application for costs which a party may make within 21 days of the orders being made by the Tribunal in accordance with r 42A of the State Administrative Tribunal Rules 2004 (WA) (Rules). As orders are now made (see below following [184]) it is open for the parties to consider making an application for costs within the time frame provided in the Rules.
7. Finally, there is utility or benefit in making declarations and orders as some real consequences must flow for the parties. There is a real disharmony between Ms Hoddinott and Ms Zar. This disharmony started not long after Ms Zar purchased Lot 4 on 1 September 2023 due to the brick wall issue and that conflict continues with the consequence, they are still unable to agree a way forward.
8. Reflecting back on the orders sought by Ms Hoddinott (see above at [20]), I will make the following declarations and orders:

(a) a declaration under s 199(3) of the ST Act that the owners and occupiers of each of Lot 3 and Lot 4 use the area of common property to rear of the respective lot which is described as the 'courtyard' for their exclusive use;

(b) a declaration under s 199(3) of the ST Act that the patio and BBQ used by the owner and occupier of Lot 3 are on the common property and have been used for their exclusive use;

(c) an order under s 200(2)(n) of the ST Act that the strata company is to be taken to have passed as a resolution without dissent that the area immediately to the rear of each of Lot 3 and Lot 4 (the 'courtyard') is for the exclusive use of the owners and occupiers of Lot 3 and Lot 4 respectively and includes the requirement to keep in good and serviceable repair, properly maintain and if necessary renew and replace the courtyard including any structure, fixture or fitting on or used in connection with courtyard and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or otherwise at each Lot owner's own cost and the further requirement that the brick wall/Colorbond fence must be kept in good and serviceable repair, properly maintained and if necessary renewed and replaced at the cost of the owners of Lot 3 and Lot 4 equally; and

(d) an order under s 200(2)(l) of the ST Act that the strata company must take all actions reasonably necessary to put into effect the resolution set out in (c) above including lodging the exclusive use by-law for each of Lot 3 and Lot 4 with the Registrar of Titles for registration on the strata plan within 90 days of these orders;

(e) an order under s 200(2)(o)(i) of the ST Act that each of Ms Hoddinott and Ms Zar must each pay one half of all reasonable expenses of the strata company in relation to order (d) above within 21 days of the strata company issuing a written request for payment;

(f) an order under s 200(2)(o)(i) of the ST Act that Ms Hoddinott must pay Ms Zar the amount of $1,396 within 21 days of these orders, or as otherwise agreed in writing by the parties, for her equal share of the cost to replace the brick wall (Part B) with the Colorbond fence of $2,489 and the engineering report $858 but reduced by Ms Zar's equal share of the cost of the report and quote paid for by Ms Hoddinott of $555. As Ms Zar in her email to the owners on 4 January 2024 (see above at [92]) states that she offers to pay for the additional amount for the repair of the brick wall (Part A) which amounts to $335, that amount is excluded from the calculation of the amount payable by Ms Hoddinott ($2,489 + $858 - $555) divided by 2); and

(g) an order under s 200(2)(o)(i) of the ST Act that Ms Zar must pay to the strata company $1,244 (to reimburse to each of the owners of Lot 1 and Lot 2 their contribution of $622 for the replacement of the brick wall (Part B) with the Colorbond fence) within 21 days of these orders.

1. The order under s 200(2)(l) of the ST Act is necessary so that the strata company has the authority to take all reasonably necessary actions which may include the engagement of a licenced land surveyor to peg the boundaries of the lots to prepare a sketch of the exclusive use area to the rear of each of Lot 3 and Lot 4, the engagement of a lawyer or strata law specialist to draft the exclusive use by-law and attending to the registration of the exclusive use by-law with the Registrar of Titles. Ms Hoddinott and Ms Zar are to pay these expenses in equal shares as provided for under the order to be made under s 200(2)(o)(i) of the ST Act.
2. In conclusion, by making the above declarations and orders, this should create certainty between Ms Hoddinott, Ms Zar and the strata company about the common property area immediately to the rear of Lot 3 and Lot 4 and the brick wall/Colorbond fence (Part A and Part B for which the strata company has no responsibility for going forward and thus reduce any further disputes and litigation.
3. Finally, by way of observation, the strata company, while attending to the above orders in respect of Lot 3 and Lot 4, may want to consider whether the same area to the rear of Lot 1 and Lot 2 should similarly be granted an exclusive use and have an exclusive use by-law registered on the strata plan.

Exercise of discretion - December 2024 fence motion issue

1. The orders sought by Ms Hoddinott (see above at [20]) are that the strata company is taken to have not passed the motion which concerns the raising of a levy for the demolition and replacement of the brick wall (Part B) with the Colorbond fence.
2. It is reasonable, in my view, to exercise the Tribunal's statutory discretionary powers to make a declaration under s 199(3) of the ST Act and an order under s 200(1) of the ST Act to resolve the December 2024 fence motion. The reasons for this are as follows.
3. First, there is a real issue concerning the action taken by the strata company at the meeting of 9 December 2024 which Ms Hoddinott says is unfairly prejudicial to, or discriminatory against her and is oppressive or unreasonable on the basis that Ms Zar was compensated $5,350 by the former owner of Lot 4, Mr Russell, to have the brick wall repaired and therefore, on Ms Hoddinott's view, Ms Zar alone must pay to reinstate 'Part B' of the brick wall which was removed without her authority. Again, this is a real and ongoing issue concerning the replacement Colorbond fence between Lot 3 and Lot 4 and it is not a hypothetical or theoretical issue.
4. Second, Ms Hoddinott who seeks the orders has a real interest in this matter. This is because the brick wall (Part B) was demolished and replaced with a Colorbond fence between her Lot 3 and Lot 4 and despite her objection she has been asked to contribute 25% of the cost, or an amount of $622. Ms Zar also has a real interest as she paid $2,489 for the demolition of the brick wall (Part B) and the installation of the Colorbond fence.
5. Finally, there is utility or benefit in making a declaration and orders as some real consequences must flow for the parties. In my view, a declaration and orders to signal that the behaviour of Ms Hoddinott in refusing to contribute to the repair of the brick wall between Lot 3 and Lot 4 in circumstances where she is the long standing owner of Lot 3 and had agreed with the construction of the brick wall between the two lots by the contribution of one half of the cost and has maintained that immediately behind her Lot 3 is common property but that it is for her exclusive use and has made this certain by the installation of fencing to prevent access by others.
6. Reflecting on the orders sought (see above at [20]), I will make the following declaration and orders:

(a) a declaration under s 199(3) of the ST Act that the motion of 9 December 2024 to raise a levy, divided equally among all four owners to cover the cost of repair/replacement of the brick wall between Lot 3 and Lot 4, based on the cheapest quote (see above at [55]) is taken not to have been passed;

(b) an order under s 200(2)(n) of the ST Act that the strata company is taken not to have passed the motion at the council meeting held on 9 December 2024; and

(c) an order under s 200(4) of the ST Act that the order under (b) above is effective from 9 December 2024 (the date of the meeting).

1. In conclusion, by making the above declaration and orders, this should create certainty between Ms Hoddinott, Ms Zar and strata company in regards to the brick wall (Part B) which was replaced by the Colorbond fence between Lot 3 and Lot 4 and thus reduce any further disputes and litigation.

1. Ms Hoddinott seeks two orders for the insurance issue (see above at [20]). First, that the strata company to have insurance coverage as required under the ST Act and secondly that she be reimbursed $845 (or 75% of $1,127.33) for the insurance premium she paid to Suncorp.
2. It is reasonable, in my view, to exercise the Tribunal's statutory discretionary powers to make a declaration under s 199(3) of the ST Act and orders under s 200(1) of the ST Act to resolve the insurance issue and the related Building Order concerning the patio. The reasons for this are as follows.
3. First, there is a real ongoing issue concerning the lack of required insurance coverage for the strata complex.
4. Second, Ms Hoddinott who seeks the orders has a real interest in this matter. This is because she paid Suncorp $1,127.33 for insurance on 9 August 2024 and seeks to be reimbursed by the other three owners for their share of the insurance. Further, according to Ms Hoddinott she owns the patio (and that the patio itself is not common property). Ms Zar and the other owners also have a real interest in this matter as they are lot owners in the strata complex without current insurance coverage.
5. Finally, there is utility or benefit in making the declaration and orders as some real consequences must flow for the parties. In my view, a declaration and orders signal that the behaviour of Ms Hoddinott, Ms Zar and the other owners is unacceptable in circumstances where there is no evidence before the Tribunal that insurance with disclosure of the Building Order has been refused.
6. Reflecting back on the orders sought (see above at [20]), I will make the following declaration and orders:

(a) a declaration under s 199(3) of the ST Act that the strata company does not have in place insurance coverage as required under cl 53C and cl 53D of Sch 2A of the ST Act;

(b) an order under s 200(2)(m) of the ST Act that Ms Hoddinott must, at her cost, have the patio located in the 'courtyard' at the rear of Lot 3 (which Lot 3 now has exclusive use of pursuant to an order under s 200(2)(n) of the ST Act (see above at [161]) either demolished or certified as structurally sound by a structural engineer and if the later provide a copy of the certification to the strata company and to the City of South Perth, in order to comply with the terms of the Building Order issued on 31 January 2025 by the City of South Perth, within 21 days of these orders;

(c) an order under s 200(2)(o)(i) of the ST Act that the strata company must refund to Ms Hoddinott $825 for insurance she paid on behalf of the other three lot owners, or alternatively apply the amount as a credit to Ms Hoddinott's outstanding contributions as directed by Ms Hoddinott within 21 days of these orders; and

(d) an order under s 200(2)(l) of the ST Act that the strata company must take all reasonably practicable steps to obtain and fully pay for the required insurance under the ST Act for the strata complex as specified in cl 53D of Sch 2A of the ST Act within 21 days of these orders.

1. In conclusion, by making the above declaration and orders, this should create certainty between Ms Hoddinott, Ms Zar and the strata company in regards to insurance coverage and thus reduce any further disputes and litigation.
2. Ms Hoddinott's application is otherwise dismissed.

1. No doubt Ms Zar finds Ms Hoddinott unreasonable in circumstances where she has only recently purchased into the strata scheme and that because of Ms Hoddinott's failure to comply with the Building Order in respect of her patio, Ms Zar contends that the strata company still does not have the required insurance in place.
2. Similarly, no doubt Ms Hoddinott finds Ms Zar unreasonable in circumstances where Ms Hoddinott says that she had to make the application to the Tribunal in order to resolve the ongoing dispute with the brick wall (Part B) being demolished and replaced with a Colorbond fence contrary to her repeated objections and the continued lack of insurance for the strata complex.
3. It is unfortunate that the parties were not able to resolve their differences without the intervention of the Tribunal.
4. 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). Therefore, reflecting back on the findings that I have made in relation to the keys issues (see above at [19]), it is reasonable in all of the circumstances of this case, to exercise the Tribunal's discretionary powers under s 199(3), s 200(2) and s 200(4) of the ST Act to make the following declarations and orders, for all of the reasons explained earlier in these reasons including to create certainty for the parties and to minimise any further disputes and litigation.

1. For all of the forgoing reasons, I make the following orders.
   1. The Tribunal declares:

(a) pursuant to s 199(3) of the Strata Titles Act 1985 (WA):

(i) the brick wall/Colorbond fence between Lot 3 and Lot 4 is on the common property (subject to declaration 1(a)(iii) and order 2(a)(i) below);

(ii) the patio and BBQ used by the occupiers of Lot 3 are on the common property (subject to declarations 1(a)(iii) and order 2(a)(i) below) and have been used for their exclusive use;

(iii) the owners and occupiers of each of Lot 3 and Lot 4 have used the area of common property to rear of the respective lot (the 'courtyards') for their exclusive use;

(iv) the resolution of the second respondent of 9 December 2024 concerning the levy to be raised, divided equally among all four owners, to cover the cost of repairing or replacing the damaged fence between Lot 3 and Lot 4, based on the cheapest available quote is taken not to have been passed; and

(v) the second respondent does not have in place insurance coverage as required under cl 53C and cl 53D of Sch 2A of the ST Act.

(a) pursuant to s 200(2)(n) of the Strata Titles Act 1985 (WA):

(i) the second respondent is to be taken to have passed as a resolution without dissent that the area immediately to the rear of each of Lot 3 and Lot 4 (the 'courtyard') is for the exclusive use of the occupiers of Lot 3 and Lot 4 respectively and includes the requirement to keep in good and serviceable repair, properly maintain and if necessary renew and replace the courtyard including any structure, fixture or fitting on or used in connection with courtyard and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or otherwise at each Lot owner's own cost and the further requirement that the brick wall/Colorbond fence must be kept in good and serviceable repair, properly maintained and if necessary renewed and replaced at the cost of the owners of Lot 3 and Lot 4 equally; and

(ii) the second respondent is taken not to have passed the motion at the meeting held on 9 December 2024 concerning the levy to be raised, divided equally among all four owners, to cover the cost of repairing or replacing the damaged fence between Lot 3 and Lot 4, based on the cheapest available quote.

(b) pursuant to s 200(4) of the Strata Titles Act 1985 (WA) order 2(a)(ii) above is effective from 9 December 2024 (the date of the meeting);

(c) pursuant to s 200(2)(l) of the Strata Titles Act 1985 (WA) the second respondent must take all action reasonably necessary to put into effect the resolution set out in order 2(a)(i) above including lodging an exclusive use by-law for each of Lot 3 and Lot 4 with the Registrar of Titles for registration on the strata plan within 90 days of these orders;

(d) pursuant to s 200(2)(o)(i) of the Strata Titles Act 1985 (WA) the applicant and first respondent must each pay one half of all the reasonable expenses of the second respondent in relation to order 2(c) above within 21 days of the second respondent issuing a written request for payment;

(e) pursuant to s 200(2)(o)(i) of the Strata Titles Act 1985 (WA):

(i) the applicant must pay to the first respondent $1,396 within 21 days of these orders, or as otherwise agreed in writing by the parties, as the applicant's contribution to the replacement of the brick wall (Part B) with the Colorbond fence costing $2,489 and the engineering report $858 but reduced by the first respondent's equal share of the report and quote obtained by the applicant of $555; and

(ii) the first respondent must pay to the second respondent $1,244 within 21 days of these orders, or as otherwise agreed in writing by the parties, for the reimbursement to each of the owners of Lot 1 and Lot 2 their contribution of $622 for the replacement of the brick wall (Part B) with the Colorbond fence;

(f) pursuant to s 200(2)(m) of the Strata Titles Act 1985 (WA) the applicant must, at the applicant's cost, have the patio located in the 'courtyard' at the rear of Lot 3 (which Lot 3 now has exclusive use of pursuant to order 2(a)(i) above) either demolished and the debris removed from Lot 3 or certified as structurally sound by a structural engineer with a copy of the certification provided to the second respondent and to the City of South Perth, in order to comply with the terms of the Building Order issued on 31 January 2025 issued by the City of South Perth, within 21 days of this order;

(g) pursuant to s 200(2)(o)(i) of the Strata Titles Act 1985 (WA) the second respondent must refund to the applicant $825 for insurance the applicant paid on behalf of the other three lot owners or alternatively apply the amount as a credit to the applicant's outstanding contributions as directed by the applicant within 21 days of this order; and

(h) pursuant to s 200(2)(l) of the Strata Titles Act 1985 (WA) the second respondent must take all reasonably practicable steps to obtain and fully pay for the required insurance for the strata complex as required by cl 53C and cl 53D of Sch 2A of the Strata Titles Act 1985 (WA) within 21 days of this order.

1. Alexander Vanic is removed as a party to the proceeding.
2. The application is otherwise dismissed.

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

[1] The 1966 Act was repealed on 30 June 1985.

[6] At the directions hearing on 10 December 2025, I made the order, with the consent of the parties, that the application is accepted by the Tribunal as an application under s 197(4) of the ST Act rather than under s 99(2) of the ST Act.

[7] Ms Hoddinott's closing written submissions at page 2.

[8] Ms Zar's closing written submissions at pages 12 to 13.

[10] Noting that submissions are not evidence.

[15] See order 7 of the orders made by the Tribunal on 10 December 2025.

[16] The orders sought by Ms Hoddinott were confirmed by her at the direction hearing held on 10 December 2025 (refer to order 8).

[17] See order 4 of the orders made by the Tribunal on 10 December 2025.

[30] Exhibit 2 at pages 30 to 32 and pages 39 to 41.

[34] Ms Hoddinott's closing written submissions at page 2.

[37] 'Council' means the governing body to the strata company.

[42] Exhibit 2 at page 94 and Exhibit 1 at page 7.

[52] Exhibit 2 at page 181 and Ms Hoddinott's closing written submissions at page 8.

[79] Copy of bank statement attached to Ms Hoddinott's written closing submissions.

[86] See Bendall-Harris v Aitken [2008] WADC 112; Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2024] WASAT 25; Giabeni Pty Ltd and The Owners of 30 Coode Street Mount Lawley Strata Plan 11321 [2024] WASAT 105.