Strata titles - Preliminary issue - 'Scheme dispute' - Whether applicant is a 'scheme participant' - Sale of lot

State Administrative Tribunal Act 2004 (WA), s 60(2)

Strata Titles Act 1985 (WA), s 3, s 14(8), s 85, s 136, s 197, s 197(1), s 197(2), s 197(2)(g), s 197(3), s 199, s 200(1), s 202, Sch 1, Sch 2

Blaszkiewicz and The Owners of 7 Henderson Street Fremantle (Strata Scheme 74918) [2021] WASAT 56

Cartner and Craig [2020] WASAT 101

1. Lisa O'Neil claimed the failure to repair a water leak emanating from common property caused damage to her unit. She commenced these proceedings seeking compensation from the strata company.

1. The Tribunal ordered the following be determined as a preliminary issue.

(a) Does the Tribunal have jurisdiction to determine this proceeding if Ms O'Neil no longer owns the unit?

1. Section 197 of the Strata Titles Act 1985 (WA) (ST Act) provides for the resolution by the Tribunal of scheme disputes.
2. A 'scheme dispute' is defined to mean a dispute between scheme participants regarding various matters arising under the ST Act including the failure to perform functions conferred on a person by the ST Act and an alleged contravention of the ST Act.[1]
3. A 'scheme participant' is defined to mean:[2]

(a) the strata company for the strata titles scheme;

(b) for a leasehold scheme, the owner of the leasehold scheme;

(c) a person who is appointed as an administrator of a strata company for the strata titles scheme;

(d) a member of the strata company for the strata titles scheme;

(e) the occupier of a lot in the strata titles scheme;

(f) the registered mortgagee of a lot in the strata titles scheme;

(g) a member of the council of a strata company, or an officer of the strata company, for the strata titles scheme, who is not a member of the strata company.

1. What is meant by the words 'member of the strata company' is addressed by s 14(8) of the ST Act which states:

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).

1. The Tribunal ordered the preliminary issue be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
2. In reaching a decision I have had regard to all of the documents filed by the parties in this matter, but most particularly:

(a) the application filed by Ms O'Neil on 20 November 2024 and the documents attached to that application;

(b) the bundle of documents filed by Ms O'Neil on 30 June 2025;

(c) the submissions filed by Ms O'Neil on 9 September 2025;

(d) the submissions filed by the Strata Company on 24 September 2025.

1. My findings as to the material facts are as follows. These facts were not disputed.
2. Strata plan 34649 (the strata plan) was registered on 9 July 1998 and is named Gloucester Court Orelia. The Owners of Gloucester Court Orelia Strata Plan 34649 (the Strata Company) is the strata company for the strata scheme created by the registration of the strata plan (the strata scheme).
3. Ms O'Neil became the registered proprietor of Lot 5 of the strata plan (the unit) on 28 May 2007.
4. Ms O'Neil commenced these proceedings by filing her application on 20 November 2024.
5. Settlement of the sale of the unit occurred on 11 February 2025. As from that date, Ms O'Neil ceased being the registered proprietor of the unit.

1. Ms O'Neil's contentions are summarised as follows:

(a) What matters, in terms of the Tribunal's jurisdiction, is the position at the time the proceedings were commenced. Jurisdiction once enlivened is not lost.

(b) Scheme participants under s 197(2) include members of the strata company and members of the council of owners who are not members of the strata company.

(c) The decision in Blaszkiewicz and The Owners of 7 Henderson Street Fremantle (Strata Scheme 74918) [2021] WASAT 56 (Blaszkiewicz) is not relevant because in that decision the applicant had ceased to be an owner (by virtue of having lodged the transfer of land at Landgate) prior to lodging their application.

(d) Ms O'Neil was the registered proprietor of the unit, and a member of the strata scheme, at the time of lodgement.

(e) The Tribunal had jurisdiction at the time of lodgement and so retains jurisdiction despite the subsequent sale of the unit.

1. The contentions of the Strata Company are summarised as follows:

(a) The ST Act by s 197(1) provides the Tribunal with jurisdiction to resolve scheme disputes and outlines the types of disputes which constitute a scheme dispute.

(b) The ST Act identifies the persons who can be scheme participants for the purposes of s 197(1). A scheme participant includes a member of the strata company for the strata titles scheme.

(c) Section 14(8) provides that a member of a strata company means an owner for the time being of lots in the strata titles scheme. Section 3 of the ST Act provides that an owner is a person who is registered as the proprietor.

(d) The words 'for the time being' must mean that the relevant time is when the Tribunal makes a determination, not the point at which the application is made.

(e) The Blaszkiewicz decision is authority for the position that the Tribunal does not have jurisdiction to resolve a scheme dispute where the applicant is no longer a scheme participant.

(f) Therefore, the application should be dismissed.

1. The submissions of Ms O'Neil suggest that she is a scheme participant by virtue of paragraphs (d) or (g) of the definition of that term. I will consider each in turn.

1. Ownership of a lot 'for the time being' is to be determined by the details contained the Certificate of Title for a lot in a strata scheme.[3]
2. The purchasers of the unit became the registered proprietors on 11 February 2025. At that point, Ms O'Neil ceased to be the registered proprietor of the unit and therefore was no longer a member of the strata company.
3. Ms O'Neil cited seven previous decisions of the Tribunal as authority for her contention that the Tribunal cannot lose jurisdiction. However, none contained the decisions or the principles for which Ms O'Neil contends. They do not assist her case.
4. In my view there is no basis for the proposition the Tribunal cannot lose jurisdiction. In the decision of Cartner and Craig the Tribunal did not have jurisdiction to determine a matter under the ST Act because one of the parties became a resident of another state. It was held that even if the Tribunal had jurisdiction at the commencement of the proceeding, its jurisdiction would cease if the basis for that jurisdiction ceased.[4] This is but one example of many.
5. Accordingly, the conclusion is unavoidable. When Ms O'Neil ceased to be a member of the strata company:

(a) her dispute with the Strata Company ceased to be a scheme dispute within the meaning of the ST Act; and

(b) the Tribunal no longer had jurisdiction to determine the matter under the terms of the ST Act.

Officer and council of a strata company - paragraph (g)

1. For simplicity, from hereon I will refer to the council of the strata company as 'the council' and an officer of the strata company as 'an officer'.
2. I have taken the submissions of Ms O'Neil to suggest that:

(a) under s 197(2)(g) a member of the council or an officer can be a scheme participant even if they are not a member of the relevant strata company;

(b) therefore, if she held either of those positions in relation to the strata scheme;

(c) her sale of the unit would not affect the jurisdiction of the Tribunal in relation to this proceeding.

1. There is no evidence before the Tribunal to suggest whether or not Ms O'Neil is (or was) an officer or a member of the council in relation to the strata scheme. Therefore, it could have been suggested this argument failed for not disclosing a factual basis. However, as this was not raised by the Strata Company, Ms O'Neil is not legally represented and the early stage of the proceedings, I have considered the legal basis upon which the claim might be made.

1. As noted above, s 197(2)(g) of the ST Act states that a scheme participant includes:

a member of the council of a strata company, or an officer of the strata company, for the strata titles scheme, who is not a member of the strata company

1. An 'officer of a strata company' is defined by the ST Act to mean the chairperson, any secretary or any treasurer of the strata company.[5]
2. The eligibility to be, and process of appointment of, an officer and a member of council is contained in the by-laws rather than the ST Act. The terms of the by-laws contained in schedules 1 and 2 of the ST Act are relevant to the interpretation of s 197(2)(g).
3. Governance by-law 4 includes the following:

(a) The council is first comprised of all the lot owners, up to the first annual general meeting.

(b) Where there are no more than three lot owners, the council is to comprise of all three owners. Where there are more than three lot owners, the council is to comprise between three and seven lot owners.

(c) A member of the council vacates their position on the council if they cease to be an owner or co-owner of a lot.

(a) At the first meeting of the council after the council members assume office, they must appoint a chairperson, secretary and treasurer of the council. No-one can be appointed to those positions unless they are a member of the council.

(b) The appointed chairperson, secretary and treasurer will lose their position if they cease to be a member of the council.

1. Governance by-law 7 provides that the chairperson, secretary and treasurer of the council are also the chairperson, secretary and treasurer of the strata company.
2. Clearly, members of the council are required to be lot owners. Therefore, an officer must also be a lot owner.
3. The ST Act provides for limited exceptions whereby a non-owner may perform the role of a member of council or officer:

(a) If a lot owner cannot be found or lacks the capacity to vote, the Public Trustee or another specified person may be appointed to act in their stead.[6]

(b) A corporation may authorise an individual to act on its behalf as an officer or a member of the council.[7]

1. In my view, s 197(2)(g) is intended to apply to those exceptions, to ensure a non-owner appointed to act would have standing as a scheme participant. This is because:

(a) Other categories of scheme participants have a connection to the relevant strata scheme. It is logical persons identified in s 197(2)(g) would also have a connection to the strata scheme.

(b) Unlike s 85 and s 136 of the ST Act, s 197(2)(g) contains no rationale or mechanism for the appointment of a non-owner.

(c) If the legislature had intended to expand the class of persons who might act as an officer or a member of council, there would have been specific provision. It would be inconsistent with the ST Act to do so by way of s 197(2)(g).

1. It is not alleged and there is no evidence either of s 85 or s 136 of the ST Act applied to Ms O'Neil.

1. There was no evidence as to the by-laws which govern the strata scheme. If no by-laws were registered with the strata plan in 1998, then the by­laws as contained in the ST Act applied. It appears amendments to the by-laws were first lodged with Landgate on 3 January 2003. Accordingly, from that point the statutory by-laws as amended by the Strata Company took effect. However, for the purposes of this matter, there are no relevant differences between those by-laws and the governance by-laws contained in the ST Act.
2. Section 197(2)(g) does not assist Ms O'Neil. If she were a member of council, her position was vacated upon settlement of the sale of the unit. If she had been an officer, her position was vacated upon ceasing to be a member of the council.
3. Therefore, upon registration of the sale of the unit, Ms O'Neil would have ceased to be an officer or a member of the council. That in turn meant:

(a) she would have ceased to be a scheme participant;

(b) the dispute ceased to be a 'scheme dispute' as defined in the ST Act; and

(c) the Tribunal was no longer able to determine the dispute pursuant to the terms of the ST Act.

1. The Tribunal only has jurisdiction to determine disputes under the ST Act to the extent permitted by the ST Act. At the point when Ms O'Neil ceased to be the registered owner of the unit, she ceased to be a 'scheme participant' as defined in the ST Act. Therefore, her claim against the Strata Company was no longer a 'scheme dispute' as defined by the ST Act. Accordingly, the Tribunal lost jurisdiction to deal with this matter. Ms O'Neil may still pursue her claims, but she must do so in another forum.
2. For these reasons, I make the orders set out below.

1. The Tribunal has determined, as a preliminary issue, that it does not have jurisdiction to deal with this matter by reason of it not being a scheme dispute as defined by s 197 of the Strata Titles Act 1985 (WA).
2. The proceeding is dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) as misconceived.

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

[1] ST Act, s 197(1) but see also s 197(3).

[4] Cartner and Craig [2020] WASAT 101 at [42].