Interim application - Whether a proceeding is wholly or in part lacking in substance or is an abuse of process - Turns on own facts

State Administrative Tribunal Act 2004 (WA), s 9(b), s 46(1), s 46(2), s 47, s 47(1), s 47(1)(a), s 47(1)(c), s 49, s 51(1), Pt 5

State Administrative Tribunal Rules 2004 (WA), r 15

Strata Titles Act 1985 (WA), s 14(8), s 47, s 47(3), s 47(4), s 47(5), s 87(2), s 197(1), s 197(2), s 197(4), s 198(1), s 199(3)(a), s 200(2)(m), Sch 2

Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2023] WASAT 37

Laurent and Commissioner of Police [2009] WASAT 254

Legal Services and Complaints Committee and McCardle [No 2] [2023] WASAT 131

Saje and Sampson [2023] WASAT 101

1. Eliana Aura Leena Saje (Dr Saje or the applicant) is with her daughter Lisa Katherine Saje the owner of Lot 3 on Strata Plan 21602 (the Strata Plan).[1] The Strata Plan comprises a two storey building situated at 36B Third Avenue, Mount Lawley, containing four ground floor residential units each with a courtyard (Lots 1 to 4) and four first floor residential units (Lots 5 to 8), along with common property.
2. On 6 July 2024 Dr Saje lodged with the Tribunal an application under s 197(4) of the Strata Titles Act 1985 (WA) (ST Act), CC 435/24 (the CC 435/24 proceeding). There are eight respondents to the CC 435/24 proceeding, these being The Owners of 36B Third Avenue, Mt Lawley, Strata Plan 21602 (the Strata Company) and the owners of Lots (also known as Units or U's) 1[2], 2[3], 4[4], 5[5], 6[6], 7[7] and 8.[8]
3. On 15 October 2024 Dr Saje lodged a further application under s 197(4) of the ST Act with the Tribunal, CC 736/2024 (the CC 736/24 proceeding). There is one respondent to CC 736/24, which is the Strata Company.
4. These are, however, not the only proceedings Dr Saje has commenced in this Tribunal in respect of the Strata Plan. Between March 2022 and February 2024 Dr Saje commenced eight other proceedings in the Tribunal in respect of the Strata Plan, these being CC 387/22, CC 549/22, CC 787/22, CC 494/23, CC 1188/23, CC 43/24, CC 99/24 and CC 100/24. The details of these other proceedings are set out at paragraph [15]. The last of these other proceedings was finalised by the Tribunal on 4 October 2024.
5. On 30 January 2024 the Strata Company lodged what the Tribunal dealt with as an interlocutory application to strike out orders 2 and 3 of the orders sought by Dr Saje in CC 736/24 on the basis these orders dealt with grounds and orders sought which have been determined in one or more of the other proceedings lodged by Dr Saje.
6. On 10 December 2024 the Tribunal ordered the respondents to both CC 435/24 and CC 736/24 to lodge applications for strike out particularising which matters have already been determined by the Tribunal. Dr Saje was then ordered to lodge her response to the strike out applications.
7. In compliance with the Tribunal's orders both the respondents and Dr Saje lodged the submissions and documents on which they intended to rely upon at the hearing of the strike out applications. The essence of the respondents' submission is the Tribunal should strike out both proceedings in their entirety as abuses of process, while Dr Saje's submission is that no part of either proceeding should be struck out.
8. The strike out applications were heard by me on 11 March 2025 on which day, with the consent of all parties, I made an order under s 51(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to the effect that the applications to strike out CC 435/24 and CC 736/24 are to remain as applications in separate proceedings but are to be heard and determined together and evidence in one application is to be evidence in the other.
9. For the reasons I give below, I have decided that each strike out application is partly successful. My findings on each of the grounds and proposed orders in CC 435/24 and CC 736/24 are summarised in the schedule at paragraph [122].
10. In the remainder of these reasons any reference to a legislative provision is, unless otherwise specified, a reference to a provision of the ST Act.

The grounds and orders sought by Dr Saje in CC 435/24

1. In CC 435/24 Dr Saje seeks the following orders:[9]

1. CoO terminate the alleged management contract immediately, because it is invalid.[10] Because the strata manager repeatedly contravenes the Act as well as the contract, s 151 also applies for the termination of the contract.
2. CoO directs strata manager to return to the strata company all strata company funds unlawfully received from the strata company or unlawfully withdrawn from the strata company account.
3. CoO directs strata manager to stop charging unlawful levies, and CoO resolves the problems with unlawful levies in breach of Act provisions, as approved at the AGM on 09/11/2023.
4. CoO directs Peter Phoenix (U5) to pay back to strata company the amount of $480 he brazenly spent to purchase a bathroom fan for U5, aided by strata manager.
5. CoO directs Harry Bigelman (U2) to pay back to the strata company the amount of $970 he spent of strata company funds on his own structure in U2 courtyard, aided by strata manager.
6. CoO must not make another contract with Zoe Maxwell and her strata services again.
7. CoO must take legal action against Mr Phoenix and Mr Bigelman, if they refuse to pay back the said strata company funds.
8. CoO must take legal action against strata manager.
9. CoO must clarify the payment made to U6 (Robin Leen) in June 2023 and inform the owners about the outcome. The amount was in excess of $1,200 from strata company funds for an unknown purpose.
10. CoO must take action against Harry Bigelman (U2) for his extensive constructions on common property at U2.
11. In CC 435/24 Dr Saje relies on the following grounds:[11]

1. The contract has fees without the required GST charge, and the contract is a fabricated modification of the original one. All evidence is under CC99 of 2024. CoO is required under to perform in compliance with the Act, and it cannot do otherwise.
2. Grounds and evidence are under CC99 of 2024. CoO is required to perform in compliance with the Act, and it cannot do otherwise.
3. Evidence is under CC99 of 2024. CoO is required to perform in compliance with the Act, and it cannot do otherwise.
4. Peter Phoenix was not on CoO in March 2023, when the purchase was made; he resigned in February 2023. The purchase was aided by strata manager, because strata manager placed the order and payment came from her. It is irrelevant whether a purchase for U5 was approved at mediation or not (it was, but later at an unspecified time), because it still had to be budgeted for and the cost had to be decided.

Indeed, strata company is responsible for common property, but other provisions of the Act are not subject to that; they apply equally. No owner must help themselves to strata company funds with the aid of a strata manager; without her participation Mr Phoenix would not have been able to help himself to strata company funds.

1. Harry Bigelman spent $970 of strata company funds to repair the structure he built in his courtyard. The structure is not common property. The repair purchase was made on 22 March 2021, orchestrated between Mr Bigelman and the strata manager alone. They managed to get some insurance cover retrospectively on 25 May 2021, which is over 2 months after they spent the money with no knowledge if insurance cover was obtainable. They used strata company funds for the excess of $500 and strata company paid $470, although it was not responsible for either. The $470 reimbursement from the insurer was due to strata manager not disclosing to the insurer that the structure was not common property.
2. Every contract the strata company has had with the strata manager has been invalid and the strata manager repeatedly breaches the Act and contracts. There is no future on this basis.
3. CoO is responsible for strata company complying with the Act, and they cannot allow this kind of conduct to continue and strata company funds to be misappropriated.
4. They must hold the strata manager accountable and protect the strata company's interests and funds. But they have already fabricated a fake management contract and refused to take action against the strata manager under CC99 of 2024, for which reason the applicant has filed CC100 of 2024 under s 198.
5. The matter needs clarification. It may be the funds were used for the purchase of something for U6, and they are not Brown's Plumbing costs.
6. Member Barton queried why the applicant had no concerns about the structures at U2, although she was discontent with the structures at U4. Given Member Barton's concern for fairness in her indirectly questioning the applicant's fairness, the applicant asks that the matter be included in the proceedings.

The grounds and orders sought by Dr Saje in CC 736/24

1. In CC 736/24 Dr Saje seeks the following orders:[12]

1. CoO directs Danielle Sampson (U4) to immediately remove the unlawful screens and door on common property around U4.
2. CoO takes legal action against Harry Bigelman for him to remove the extensive structures he built on common property around U2 as well as the conversion of common property into a walk-in pantry and the porch on the driveway side into an indoor living area at U2.
3. CoO returns to U3 the space designed for U3 hot water system, so that the applicant can purchase a new hot water system. The strata company gave the space unlawfully to Harry Bigelman in 2007, thereby leaving U3 without a space for a hotwater system which every unit must have. The strata company is responsible for the costs, and they also paid the costs in 2007.
4. CoO directs Christine Bevans of U7 to pay to the strata company the amount of $8,576.67 for her wilful destruction of strata company property, which strata company repaired, and the amount must be reimbursed to Wayne Marriott at U1 in the amount of $4,000 and the applicant in the amount of $4,500.
5. CoO directs Robin Leen to return to the strata company the amount of $1,703.75 charged to the strata company under a hidden arrangement between Zoe Maxwell and Robin Leen in June 2023.
6. CoO directs Christine Bevans to return to the strata company the amount of $1,625 charged to the strata company under a hidden arrangement between Zoe Maxwell and Christine Bevans in May 2023.
7. The strata company pay the applicant the amount of $50,000 as compensation for application fees she has had to pay; legal fees she has paid; distress and anguish caused to her, as well as the weeks of time she has spent in preparation of applications to fight strata company mismanagement, misconduct and refusal to comply with the law.
8. In CC 736/24 Dr Saje relies on the following grounds:[13]
   1. There is seemingly no end in sight to the disaster at U4 and the screens Ms Sampson refuses to do anything about. This is the 4th application the applicant has lodged in the matter, and the applicant is of the opinion that the Tribunal is responsible to a great extent. It is common ground that the applicant requested the Tribunal to determine whether the walls around U4 were common property. The Tribunal promised it would, but then did not. Had the essential request been addressed as it should have, the matter would have been resolved in 2022. The applicant has had to pay another 3 application fees for the error she was not responsible for. Matter No CC43 of 2024 is currently in confusion, because the decision was given orally in breach of SAT Act s.74. The applicant requested a directions hearing for clarification of the matter, but although the Tribunal granted leave to request it, it declined it.
   2. All of that was built without authorisation. The applicant has done her best to protect the strata company in the matter, which she considers is in every owner's interest. Now it is up to the strata company to solve it.
   3. The grounds are obvious; the applicant wants to install a hot water system in the space that was designed for U3. It is not Harry Bigelman's storage space.
   4. The applicant will provide details of how she arrived at the numbers. She also considers it fair that Wayne Marriott receive a share. The difference is due to the applicant doing all the work and paying all the filing fees with no contribution from Mr Marriott.
   5. The cost of $1,203.75 marked for 11 July 2023, and described as 'water leak repaired Jun 2023, BROWNS PLUMBING' hides a massive insurance matter of ca. $10,000. The amount of $1,203.75 is the cost of a wardrobe Robin Leen and Zoe Maxwell arranged and secretly charged to the strata company.
   6. This is another hidden insurance matter, orchestrated between Christien Bevans and Zoe Maxwell. Ms Bevans has the opportunity to come forward and put the matter right.
   7. Ss 137, 141 and 119 et al of the Strata Titles Act WA; submissions and orders in CC494 of 2023; CC43 of 2024 and CC99 of 2024.

1. Between March 2022 and February 2024 Dr Saje commenced eight other proceedings in this Tribunal in respect of the Strata Plan, these being:

(1) CC 387/22: an application lodged on 27 March 2022 under s 47(3) for the enforcement of scheme by-laws with the respondents being the Strata Company and the owner of Lot 4. Following a mediation conference held at the Tribunal on 14 September 2022 Dr Saje was given leave to withdraw this proceeding under s 46(1) of the SAT Act and on 14 September 2022 the proceeding was withdrawn.

(2) CC 549/22: an application lodged on 9 May 2022 under s 47(3) for the enforcement of scheme by-laws with the respondents being the Strata Company and the owner of Lot 2. Following a mediation conference held at the Tribunal on 14 September 2022 Dr Saje was given leave to withdraw this proceeding under s 46(1) of the SAT Act and on 14 September 2022 the proceeding was dismissed under s 46(2) of the SAT Act.

(3) CC 787/22: an application lodged on 21 June 2022 under s 197(4) for the resolution of a scheme dispute with the respondent being the Strata Company. Following a mediation conference held at the Tribunal on 14 September 2022 Dr Saje was given leave to withdraw this proceeding under s 46(1) of the SAT Act and on 14 September 2022 the proceeding was dismissed under s 46(2) of the SAT Act.

(4) CC 494/23: an application lodged on 10 April 2023 under s 47(3) for the enforcement of scheme by-laws with the respondents being the Strata Company and the owners of Lots 4 and 7. This proceeding was heard as a final hearing on 14 August 2023, with the Tribunal publishing its reasons and orders on 31 October 2023.[14] The Tribunal, by a final decision, decided that the proceeding under s 47 for the enforcement of scheme by-laws was unsuccessful and it dismissed the proceeding.

(5) CC 1188/23: an application lodged on 12 September 2023 under s 47(3) for the enforcement of scheme by-laws with the respondents being the owners of Lots 1, 4 and 7. Following a directions hearing held at the Tribunal on 16 February 2024 Dr Saje was given leave to withdraw this proceeding under s 46(1) of the SAT Act and on 16 February 2024 the proceeding was withdrawn.

(6) CC 43/24: an application lodged on 23 January 2024 under s 197(4) for the resolution of a scheme dispute with the respondents being the owners of Lots 1, 4 and 7. This proceeding, along with CC 99/24 and CC 100/24, was heard as a final hearing on 4 July 2024 with the Tribunal later delivering its oral reasons and making orders. On 4 October 2024 the Tribunal by a final decision declined to make the orders sought by Dr Saje, but it did order the owner of Lot 4 to prepare an exclusive use by-law that allows certain wooden screens and doors to remain in place on Lot 4.

(7) CC 99/24: an application lodged on 20 February 2024 under s 197(4) for the resolution of a scheme dispute with the respondents being the owners of Lots 1, 2, 4, 5, 6, 7 and 8. In its oral reasons and orders delivered on 4 October 2024, the Tribunal by a final decision declined to make the orders sought by Dr Saje and the proceeding was dismissed.

(8) CC 100/24: an application lodged on 20 February 2024 under s 198(1) to authorise a member of a Strata Company to make an application on behalf of a Strata Company with the respondents being the owners of Lots 1, 4 and 7. In its oral reasons delivered on 4 October 2024 the Tribunal by a final decision declined to make any of the orders sought by Dr Saje and the proceeding was dismissed.

Principles relevant to determining the strike out applications

1. In these reasons I will consider the respondents' strike out applications as asserting that CC 435/24 and CC 736/24 should be struck out under s 47(1)(c) of the SAT Act as an abuse of process on the basis that:

(a) each proceeding constitutes the commencement of successive proceedings which cause oppression because they constitute an attempt by Dr Saje to run the same case again;[15] or

(b) the claims in each proceeding bring the administration of justice into disrepute because they are based wholly or substantially on the facts of a claim made by the same party in earlier proceedings, such as by pursuing the same claim against a different respondent.[16]

1. The relevant parts of s 47 of the SAT Act are:
   1. Frivolous etc. proceedings, dismissal of etc.

(1) This section applies if the Tribunal believes that a proceeding -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(2) If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.

(3) The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.[17]

(4) The Tribunal may act under subsection (2) on the application of a party or on its own initiative.

1. In Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2023] WASAT 37 at [30] - [37] Member Petrucci summarised the principles relevant to the consideration of an application to strike out a proceeding as an abuse of process. I respectfully adopt this summary for the purpose of these reasons, the relevant parts of which are as follows:
   1. On its proper construction, s 47 of the SAT Act includes the power to strike out part of a proceeding in addition to the power to dismiss or strike out a proceeding in its entirety (Laurent and Commissioner of Police [2009] WASAT 254 (Laurent) at [25]).
   2. In Laurent, Deputy President Judge Pritchard (as she then was) considered in detail the power of the Tribunal in relation to applications under s 47 of the SAT Act. From what her Honour said in Laurent, his Honour, Deputy President Sharp (as he then was) made the following observations in Ellis and Director General of the Department of Transport [2011] WASAT 142 (Ellis) at [63]:

1. Section 47(1) of the SAT Act applies if the Tribunal believes that a proceeding is frivolous, vexatious, misconceived or lacking in substance or is being used for an improper purpose, or is otherwise an abuse of process. If s 47 of the SAT Act applies, the Tribunal may order under s 47(2) of the SAT Act that the proceeding be dismissed or struck out and make any appropriate orders. The Tribunal may exercise this power on its own initiative or on the application of a party.
2. Any application to dismiss or strike out a proceeding in the Tribunal should be approached with a great deal of caution. That will be all the more so when a party whose case is the subject of an application under s 47 is self­represented, does not have the benefit of legal representation or legal training and may have difficulty in precisely setting out their claim in writing.
3. Nothing in s 47 of the SAT Act contains a temporal restriction on when an application under that section may be made or considered. Plainly, as in this case, an application may be made at an interlocutory stage, but it may also be made in the course of the substantive hearing of a proceeding. The power in s 47 should be exercised particularly cautiously if an application for its exercise is made prior to the substantive hearing of an applicant's case.
4. When, as in the present case, an application is made at an interlocutory stage, the Tribunal should assume that all of the factual assertions made by an applicant will be made out and consider, from that perspective, whether the proceeding is frivolous, vexatious, misconceived or lacking in substance. Even then, however, caution should be applied in the exercise of the power in s 47. If there is a serious question of fact to be determined, that factor may render it inappropriate to dismiss the proceeding pursuant to s 47 of the SAT Act.
5. In relation to its exercise at the interlocutory stage, the power in s 47 of the SAT Act has been viewed as analogous to the powers of courts to summarily dismiss a proceeding when the pleadings fail to disclose any reasonable cause of action.
6. The above observations continue to reflect the Tribunal's position with regard to the powers of the Tribunal under s 47 of the SAT Act.
7. The decision to dismiss a proceeding as misconceived or as lacking in substance is one that should only be taken after very careful consideration of the case and where it is clear that there is no realistic prospect of success. While the Tribunal may be conscious of an applicant's desire to air their grievance so that they can be fully ventilated and any witnesses the applicant wants heard can be called, to permit proceedings to continue on the basis of very broad allegations where there is no prospect of success creates a substantial prejudice to the respondent: Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 at [44] to [45].
8. An application is misconceived or lacking in substance where the applicant has no arguable case in fact or law which should be allowed to be resolved at a full hearing: Cocks Macnish & Anor v Biundo [2004] WASCA 194 at [30] and at [79]. The term 'misconceived' connotes a misunderstanding of legal principle while the term 'lacking in substance' connotes an untenable proposition of law or fact: Laurent at [23].

1. Finally, if the proceeding, or part thereof, is dismissed or stuck [sic] out under s 47 ... of the SAT Act, another proceeding of the same kind in relation to the same matter cannot be commenced before the Tribunal without the leave of a judicial member (s 49 of the SAT Act).
2. To Member Petrucci's summary I will add one further principle relevant to my consideration of these strike out applications, which is that I am mindful the Tribunal's procedures are informal and 'proceedings before the Tribunal are not conducted by reference to formal pleadings': Laurent[18] at [18].
3. Nonetheless, while the Tribunal does not require parties to file formal pleadings it does require applicants to file a document containing the grounds and orders sought when lodging an application and the grounds so lodged do have a recognised status within the Tribunal under r 15 of the State Administrative Tribunal Rules 2004 (WA). It is with the grounds lodged by Dr Saje in her other proceedings, supplemented by the orders sought (orders sought or proposed orders), that will be the focus of my consideration in these strike out applications.
4. I am conscious the strike out applications in these proceedings are made at an interlocutory stage and that, while Dr Saje is an experienced litigant in the Tribunal, she is not legally represented. For this reason I must consider the strike out applications with a great deal of caution.
5. I will now work through each of the grounds and proposed orders lodged by Dr Saje in CC 435/24 and CC 736/24 to decide:

(1) whether there are grounds and proposed orders lodged in CC 435/24 and CC 736/24 which are substantially similar to or identical with grounds and proposed orders which were dismissed by the Tribunal under s 46(2) of the SAT Act in CC 549/22 and CC 787/22, and if so, whether those grounds and proposed orders are to be struck out under s 47(1)(c) of the SAT Act as an abuse of process; and

(2) whether there are grounds and proposed orders lodged in CC 435/24 and CC 736/24 which are substantially similar to or identical with grounds and proposed orders which were dismissed or decided by the Tribunal as a final decision in CC 494/23, CC 43/24, CC 99/24 and CC 100/24, and if so, whether those grounds and proposed orders are to be struck out under s 47(1)(c) of the SAT Act as an abuse of process.

1. Given that CC 387/22 and CC 1188/23 are proceedings which were withdrawn under s 46(1) of the SAT Act but which were not dismissed under s 46(2) of the SAT Act, I accept Dr Saje's submission that even if CC 435/24 and CC 736/24 are founded on the same grounds and proposed orders as those lodged by her in those previous proceedings that they cannot, for that reason alone, constitute an abuse of process under s 47(1)(c) of the SAT Act, nor can they fall within the class of matters which require the leave of a judicial member to commence under s 49 of the SAT Act.
2. Accordingly, I will not consider CC 387/22 and CC 1188/23 any further in these reasons except to the extent Dr Saje in CC 435/24 and CC 736/24 adopts in those proceedings certain grounds that were lodged by her in CC 1188/23.
3. I do not, though, accept Dr Saje's similar submission with respect to the remaining previous proceedings commenced by her, as those proceedings were either dismissed under s 46(2) of the SAT Act or were decided by way of a final decision.

Are the grounds and proposed orders lodged by Dr Saje in CC 435/24 similar to or identical with the grounds and proposed orders that were dismissed in CC 549/22?

1. In CC 435/24 Dr Saje seeks orders under s 197(4) for the resolution of a scheme dispute against the Strata Company and the owners of Lots 1, 2, 4, 5, 6, 7 and 8
2. In CC 549/22 Dr Saje sought orders under s 47(3) for the enforcement of scheme by-laws against the Strata Company and the owner of Lot 2. On 14 September 2022 the Tribunal dismissed CC 549/22 under s 46(2) of the SAT Act.
3. On comparing the grounds and proposed orders in these two proceedings it is apparent that ground 10 and proposed order 11 in CC 435/24 and grounds 2 and 3 and proposed orders 2 and 3 in CC 549/22 all relate to the same structure erected in the courtyard of Lot 2, this structure being a glass roof which encloses the courtyard of the Lot.
4. However, despite this similarity the two proceedings do possess several differences. Consequently, I must now decide whether those differences are of such significance they mean that in dismissing grounds 2 and 3 and proposed orders 2 and 3 in CC 549/22 under s 46(2) of the SAT Act the Tribunal has previously dismissed ground 10 or proposed order 11 lodged by Dr Saje in CC 435/24.
5. The first difference between the two proceedings is that each is brought by Dr Saje under a different section of the ST Act.
6. In CC 435/24 Dr Saje's proceeding is commenced under s 197(4), which is an application by an owner of a lot in the strata scheme for the resolution of a scheme dispute.
7. In contrast, CC 549/22 is a proceeding commenced under s 47(3) which is an application by a scheme participant (which includes Dr Saje as the co-owner of Lot 3) for the enforcement of scheme by-laws.
8. The significance of this difference is apparent when the preconditions under which the Tribunal may make an order under s 197(4) is contrasted with the preconditions under which the Tribunal may make an order under s 47(3).
9. The preconditions under which the Tribunal may make an order under s 197(4) are set out in s 198(1), which is that the Tribunal may only make such an order if it is satisfied that the Strata Company has 'unreasonably refused to make an application to the Tribunal'.
10. Dr Saje in CC 435/24 does not, unfortunately, state the grounds on which she says the Strata Company could have made an application to the Tribunal under s 197(4) in respect of the structure erected 'in' the courtyard of Lot 2, if it had wished to do so. It appears to me, however, that there may be two such potential grounds.
11. The first potential ground is that the Strata Company may have made an application that the owner of Lot 2 is in breach of s 87(2) on the basis the structure constitutes a structural alteration of the lot where the totality of the structures on the lot:

(a) will not conform to plot ratio restrictions or open space requirements for the lot, except with the prior approval of the Strata Company expressed by resolution without dissent; or,

(b) will result in a structure that is visible from outside the lot that is not in keeping with the rest of the development, or may affect the structural soundness of a building or may interfere with a statutory easement; or,

1. Under s 199(3)(a) the Tribunal may make a declaration that a specified person has or has not contravened a specified provision of the ST Act or the scheme by-laws, and under s 200(2)(m) it may may make an order requiring a person to take specified action or to refrain from taking specified action to remedy a contravention or prevent contraventions of the ST Act or the scheme by-laws.
2. The second potential ground is that the Strata Company may have made an application that the owner of Lot 2 is in breach of Sch 2 by-law 13 of the scheme by-laws. Schedule 2 by-law 13 of the scheme by-laws is in the following terms:
   1. Notice of alteration to lot

An owner of a lot must not alter or permit the alteration of the structure of the lot except as may be permitted and provided for under the Act and the by-laws and in any event must not alter the structure of the lot without giving to the Strata Company, not later than 14 days before commencement of the alteration, a written notice describing the proposed alteration.

1. The preconditions under which the Tribunal may make an order under s 47(3) for the enforcement of scheme by-laws are set out in s 47(4) and the orders which it may make if the preconditions are satisfied are set out in s 47(5), both of which are:

(4) An application can only be made under subsection (3) on the

grounds that -

(a) if a person other than the strata company is alleged to

have contravened the scheme by-laws - the person has

(b) the contravention has had serious adverse consequences

(c) the person has contravened the particular scheme by-law

(5) The Tribunal may, if satisfied that a person has contravened the

scheme by-laws, by order require the person to do 1 or more of the following -

(a) pay a specified amount to the strata company by way of

(b) take specified action within a period stated in the order

to remedy the contravention or prevent further contraventions;

(c) refrain from taking specified action to prevent further

1. The second difference between these two proceedings is that in CC 549/22 the proposed order is the Tribunal order the owner of Lot 2 to remove the structure in his courtyard and in CC 435/24 it is the Council of Owners make an application to the Tribunal to require the owner of Lot 2 to remove the structure in his courtyard.
2. After considering the similarities and the differences between the proceedings I am satisfied and I find that while ground 10 and proposed order 11 in CC 435/24 and grounds 2 and 3 and proposed orders 2 and 3 in CC 549/22 all deal with the same structure and potentially seek similar remedies that they are nonetheless different grounds and proposed orders for the purpose of my consideration of the strike out applications. This is because each proceeding is commenced under a different section of the ST Act with different preconditions, with the consequence that each proceeding is to be decided by very different findings.
3. I am therefore satisfied and I find that ground 10 and proposed order 11 in CC 435/24 are not grounds and orders sought which have been previously dismissed or finally decided by the dismissal of grounds 2 and 3 and proposed orders 2 and 3 in CC 549/22. That is, I am satisfied and I find that ground 10 and proposed order 11 in CC 435/24 should not be struck out as an abuse of process.

Are the grounds and proposed orders in CC 736/24 similar to or identical with the grounds and proposed orders that were dismissed in CC 549/22?

1. In CC 736/24 Dr Saje seeks orders under s 197(4) for the resolution of a scheme dispute with the respondent being the Strata Company.
2. In CC 549/22 Dr Saje sought orders under s 47(3) for the enforcement of scheme by-laws with the respondents being the Strata Company and the owner of Lot 2. On 14 September 2022 the Tribunal ordered CC 549/22 to be dismissed under s 46(2) of the SAT Act.
3. On comparing the grounds and proposed orders in these two proceedings it is apparent that grounds 2 and 3 and proposed orders 2 and 3 lodged by Dr Saje in CC 736/24 and grounds 2, 3 and 4 and proposed orders 2, 3 and 4 lodged by her in CC 549/22 all relate to the same structures erected on common property or alterations of common property said to have been made by the owner of Lot 2, comprising:

(2) A walk-in pantry constructed in the courtyard of lot 2;

(3) The enclosure of a porch at the entrance of Lot 2; and

(4) The alteration of common property which prevents Dr Saje from installing a hot water heater for Lot 3 in the same place as one that was installed when the Strata Plan commenced.

1. However, despite these similarities, the two proceedings do possess some differences.
2. As discussed above at paragraphs [31] to [43] the first difference between the two proceedings is that each is brought by Dr Saje under a different section of the ST Act.
3. The second difference between these two proceedings is that in CC 549/22 Dr Saje's proposed order is that the Tribunal order the owner of Lot 2 to remove certain structures and alterations made to common property and in 736/24 it is that the Council of Owners make an application to the Tribunal to require the owner of Lot 2 to remove the structures and alterations made to the common property.
4. After considering these matters I am satisfied and I find that while the grounds and proposed orders lodged by Dr Saje in proceeding CC 736/24 and those she lodged in CC 549/22 deal with the same structures and alterations and potentially seek similar remedies that, for the purpose of my consideration of the strike out applications, they are different grounds and proposed orders. As I explained above at paragraphs [31] to [43] this is because each proceeding is commenced under a different section of the ST Act with the consequence that each is to be decided by very different findings.
5. I am therefore satisfied and I find grounds 2 and 3 and proposed orders 2 and 3 lodged by Dr Saje in CC 736/24 are not grounds and orders sought that have been previously dismissed or finally decided by the dismissal of grounds 2, 3 and 4 and proposed orders 2, 3 and 4 in CC 549/22. That is, I am satisfied and I find that grounds 2 and 3 and proposed orders 2 and 3 in CC 736/24 should not be struck out as an abuse of process.

Have the grounds and proposed orders lodged by Dr Saje in CC 435/24 been dismissed by the Tribunal in CC 787/22?

1. In CC 435/24 Dr Saje seeks orders under s 197(4) for the resolution of a scheme dispute with the respondents being the Strata Company and the owners of Lots 1, 2, 4, 5, 6, 7 and 8.
2. In CC 787/22 Dr Saje sought orders under s 197(4) for the resolution of a scheme dispute with the respondent to this proceeding being the Strata Company. Following a mediation conference held at the Tribunal on 14 September 2022 Dr Saje was given leave to withdraw this proceeding under s 46(1) of the SAT Act and on 14 September 2022 the proceeding was dismissed under s 46(2) of the SAT Act.
3. On comparing the grounds and proposed orders in these two proceedings it is apparent grounds 1, 6, 7 and 8 and proposed order 1 in CC 435/24 and the grounds in annexure 4a and proposed order 2 in CC 787/22 relate to the same subject which is that the contract between the Strata Company and the strata manager be terminated. It is also clear that both proceedings are commenced under the same provision of the ST Act.
4. The only real difference therefore between the two proceedings is that in CC 435/24 the order sought is that the Tribunal direct the Council of Owners to terminate the contract, and in CC 787/22 the order sought is that the Tribunal itself terminate the contract.
5. After considering the similarities between these two proceedings I am satisfied and I find that they are substantially similar proceedings as both are commenced under s 197(4) ST Act, they both deal with the same grounds and they both seek near identical remedies. Consequently, I find that grounds 1, 6, 7 and 8 and proposed order 1 in CC 435/24 are grounds and an order which have been previously dismissed or finally decided by the dismissal under s 46(2) of the SAT Act of ground 4a and proposed order 2 in CC 787/22.
6. Given this finding I will now consider whether allowing grounds 1, 6, 7 and 8 and proposed order 1 in CC 435/24 to continue would cause oppression or would place the administration of justice into disrepute.
7. After consideration I find that to allow grounds 1, 6, 7 and 8 and proposed order 1 in CC 435/24 to continue would cause oppression to both the Strata Company and the owners of Lots 1, 2, 4, 5, 6, 7 and 8. This is because in CC 787/22 Dr Saje consented to have her proceeding in respect of the strata management contract dismissed but despite this she now wishes to again litigate this ground but without obtaining leave under s 49 of the SAT Act. Rather than attempting to obtain leave in CC 435/24 Dr Saje has simply commenced yet another application in the Tribunal in respect of the same ground. This has yet again required both the other Lot owners and the Strata Company to devote their time and attention to respond to grounds which have been dismissed in a prior proceeding
8. After further consideration I also find that to allow grounds 1, 6, 7 and 8 and proposed order 1 in CC 435/24 to continue would bring the administration of justice into disrepute. This is because, having been dismissed but again litigated, the continuation of the grounds in CC 435/24 would:

(a) undermine the important public interest that there should be finality in litigation;

(b) constitute a collateral attack on a decision of the Tribunal; and

(c) be inconsistent with one of the primary objectives of the Tribunal under s 9(b) of the SAT Act, which is to 'to act as speedily ... as is practicable and minimise the costs to the parties'.

1. I am therefore satisfied and I find that grounds 1, 6, 7 and 8 and proposed order 1 in CC 435/24 should be struck out as an abuse of process under s 47(1)(c) of the SAT Act because:

(1) with respect to the Strata Company, it constitutes a 'successive proceeding which causes oppression because it constitutes an attempt by Dr Saje to run the same case again'; and

(2) with respect to the owners of Lots 1, 2, 4, 5, 6, 7 and 8, it is a proceeding which brings the administration of justice into disrepute 'as it is based wholly or substantially on a claim made' by Dr Saje in an earlier proceeding against the Strata Company.

1. That is, I find that grounds 1, 6, 7 and 8 and proposed order 1 in CC 435/24 should never have been commenced and so to allow them to continue would constitute an abuse of process. Under s 47(1)(c) of the SAT Act I will therefore strike out grounds 1, 6, 7 and 8 and proposed order 1 in CC 435/24 as an abuse of process.

Have the grounds and orders lodged by Dr Saje in CC 736/24 been dismissed by the Tribunal in CC 787/22?

1. There are no similar grounds or proposed orders in common between CC 736/24 and CC 787/22 with the consequence that there can be no prospect that any ground or proposed order in CC 736/24 should be struck out on the basis it was previously dismissed or finally decided due to the dismissal of CC 787/22. Consequently, there is no reason to consider this aspect of the strike out application any further in these reasons.

Have the grounds and orders sought by Dr Saje in CC 435/24 been dismissed or finally decided by the Tribunal in CC 494/23?

1. There are no similar grounds or proposed orders in common between CC 435/24 and CC 494/23. Consequently, for the reasons given at paragraph [61] there is no reason to consider this aspect of the strike out application any further in these reasons.

Have the grounds and orders sought by Dr Saje in CC 736/24 been finally decided by the Tribunal in CC 494/23?

1. In CC 736/24 Dr Saje seeks orders under s 197(4) for the resolution of a scheme dispute against the Strata Company.
2. In CC 494/23 Dr Saje sought orders under s 47(3) for the enforcement of scheme by-laws against the Strata Company and the owners of Lot 4 and Lot 7. The proceeding was dismissed or finally decided by this Tribunal following a final hearing, with the Tribunal publishing its reasons and orders on 31 October 2023. The Tribunal by way of final decision then dismissed the proceeding.
3. On comparing the grounds and proposed orders in these two proceedings it is apparent that ground 1 and proposed order 1 in CC 736/24 and ground 1 and proposed order 1 in CC 494/23 all relate to the same subject, which is the erection by the (prior) owner of Lot 4 of screens on the walls of the courtyard of Lot 4. In addition, ground 1 and proposed order 1 in CC 736/24 relates to a door said to be built by the (prior) owner of Lot 4 in the courtyard wall, which is an issue the Tribunal heard and determined in the final hearing of CC 494/23.
4. However, despite these similarities, the two proceedings do possess some differences.
5. The first difference between the two proceedings is that each is brought by Dr Saje under a different section of the ST Act, which is a matter that I have discussed above at paragraphs [31] to [43].
6. The second difference between these two proceedings is that in CC 494/23 Dr Saje's proposed order is that the Tribunal order the owner of Lot 4 to remove certain structures and alterations made to common property and in CC 736/24 it is that the Council of Owners is to direct the owner of Lot 4 to remove those structures and alterations.
7. After considering these matters I am satisfied and I find that while ground 1 and proposed order 1 in proceeding CC 736/24 and ground 1 and proposed order 1 in CC 494/23 deal with the same subjects and potentially seek similar remedies, for the purpose of my consideration of the strike out applications they are different grounds and proposed orders. As I discussed at paragraphs [31] to [43], this is because each proceeding is commenced under a different section of the ST Act with the consequence that each is to be decided by very different findings.
8. I am therefore satisfied and I find ground 1 and proposed order 1 in CC 736/24 are not grounds and proposed orders that have been previously dismissed or finally decided by the final decision to dismiss ground 1 and proposed order 1 in CC 494/23. That is, I am satisfied and I find ground 1 and proposed order 1 in CC 736/24 should not be struck out as an abuse of process.

Have the grounds and orders sought by Dr Saje in CC 435/24 been dismissed or finally decided by the Tribunal in the earlier proceeding CC 43/24?

1. There are no similar grounds or proposed orders in common between CC 435/24 and CC 43/24. Consequently, for the reasons given at paragraph [61] there is no reason to consider this aspect of the strike out application any further in these reasons.

Have the grounds and orders sought by Dr Saje in CC 736/24 been dismissed or finally decided by the Tribunal in the earlier proceeding CC 43/24?

1. In CC 736/24 Dr Saje seeks orders under s 197(4) for the resolution of a scheme dispute with the respondent being the Strata Company.
2. In CC 43/24 Dr Saje sought orders under s 197(4) for the resolution of a scheme dispute with the respondents being the owners of Lots 1, 4 and 7. This proceeding, along with CC 99/24 and CC 100/24, was heard as a final hearing on 4 July 2024 with the Tribunal delivering its oral reasons and making orders on 4 October 2024. By way of final decision the Tribunal declined to make the orders sought by Dr Saje, but it did order the owner of Lot 4 to prepare an exclusive use by-law that allows certain wooden screens and doors to remain in place on Lot 4.
3. On comparing the grounds and proposed orders in these two proceedings it is apparent that ground 1 and proposed order 1 in CC 736/24 and ground 1 and proposed order 1 in CC 43/24 all relate to the same subject, which is the erection by the (prior) owner of Lot 4 of screens on the walls of the courtyard of Lot 4 and the placement of a door in the courtyard wall of Lot 4.
4. After considering the similarities between these two proceedings I am satisfied and I find that they are substantially similar proceedings as both are commenced under s 197(4) ST Act, they both deal with the same grounds and they both seek near identical remedies.
5. The only real difference between the proceedings is that in CC 43/24 Dr Saje's proposed order is that the Tribunal order the owner of Lot 4 to remove the screens on, and door in, what is said by Dr Saje to be a common property brick wall, and in CC 736/24 it is that the Council of Owners is to direct the owner of Lot 2 remove the screens and the door.
6. After considering the difference between these two proceedings I am satisfied that this difference is not significant. Consequently, I find ground 1 and proposed order 1 in CC 736/24 are grounds and orders which have been previously dismissed or finally decided by a final decision of the Tribunal to dismiss ground 1 and proposed order 1 in CC 43/24.
7. Given this finding I will now consider whether allowing ground 1 and proposed order 1 in CC 736/24 to continue would cause oppression or would place the administration of justice into disrepute.
8. After consideration, I am satisfied and I find that to allow ground 1 and proposed order 1 in CC 736/24 to continue would cause oppression to the Strata Company. This is because Dr Saje has had the merits of the ground considered by the Tribunal at a final hearing in CC 43/24 but, while obviously dissatisfied with the final decision, Dr Saje did not exercise her appeal rights under Pt 5 of the SAT Act. Rather, in CC 736/24 Dr Saje has simply commenced yet another application in the Tribunal in respect of the very same grounds with the result that the Strata Company must now devote time and attention to responding to a ground which has already been finally decided.
9. I also find for the reasons I set out at paragraphs [58] and [59] that to allow ground 1 and proposed order 1 in CC 736/24 to continue would bring the administration of justice into disrepute.
10. I therefore find that ground 1 and proposed order 1 in CC 736/24 should never have been commenced and so to allow them to continue would constitute an abuse of process. Under s 47(1)(c) of the SAT Act I will therefore strike out ground 1 and proposed order 1 in CC 736/24 as an abuse of process.

Have the grounds and proposed orders lodged by Dr Saje in CC 435/24 been dismissed or finally decided by the Tribunal in CC 99/24?

1. In CC 435/24 Dr Saje seeks orders under s 197(4) for the resolution of a scheme dispute with the respondents being the Strata Company and the owners of Lots 1, 2, 4, 5, 6, 7 and 8.
2. In CC 99/24 Dr Saje sought orders under s 197(4) for the resolution of a scheme dispute with the respondents being the owners of Lots 1, 2, 4, 5, 6, 7 and 8. This proceeding was heard as a final hearing on 4 July 2024, with the Tribunal delivering its oral reasons and making orders on 4 October 2024. The Tribunal by way of final decision dismissed the proceeding.
3. On comparing the grounds and proposed orders in these two proceedings it is apparent that:

(1) Grounds 1, 6, 7 and 8 and proposed order 1 in CC 435/24 and grounds 1 and 2 and proposed order 2 in CC 99/24 relate to the same subject, which is that the contract between the Strata Company and the strata manager is to be terminated;

(2) Grounds 2, 4 and 5 and proposed orders 2, 4 and 5 in CC 435/24 and ground 3 and proposed order 3 in CC 99/24 relate to the same subject, which is that monies 'unlawfully' received by the owners of Lots 2 and 5 from the Strata Company be returned, which includes:

(a) the amount of $970 claimed by the owner of Lot 2 due to damage to the structure in the courtyard of Lot 2; and

(b) the sum of $480 being the cost of a bathroom exhaust fan installed by the strata manager in Lot 5; and

(3) Ground 3 and proposed order 3 in CC 435/24 and ground 5 and proposed order 5 in CC 99/24 relate to the same subject, which is that the strata manager return to the applicant the amount of $9,271, which was paid as a levy by the applicant on 16 February 2021.

1. With respect to grounds 1, 6, 7 and 8 and proposed order 1 in CC 435/24 and grounds 1 and 2 and proposed order 2 in CC 99/24, it is clear that these grounds were resolved by the Tribunal making findings and then dismissing proceeding CC 99/24.
2. After considering the similarities between these two proceedings I am satisfied and I find that they are substantially similar proceedings as both are commenced under s 197(4) ST Act, they both deal with the same grounds and they both seek near identical remedies.
3. The only real difference between the proceedings is that in CC 99/24 Dr Saje's proposed order is that the Tribunal order certain things be done and in CC 435/24 it is that the Council of Owners order those same things to be done.
4. After considering the difference between the two proceedings I am satisfied that this difference is not significant. Consequently, find that grounds 1, 6, 7 and 8 and proposed order 1 in CC 435/24 are grounds and proposed orders which have been finally decided by the dismissal of ground 1 and proposed order 2 in the previous proceeding CC 99/24.
5. Given this finding I will now consider whether to allow grounds 1, 6, 7 and 8 and proposed order 1 in CC 435/24 to continue would cause oppression or would bring the administration of justice into disrepute.
6. After consideration, I find that to allow grounds 1, 6, 7 and 8 and proposed order 1 in CC 435/24 to continue would cause oppression to the Strata Company and to the owners of Lots 1, 2, 4, 5, 6, 7 and 8. This is because Dr Saje has had the merits of the strata management contract considered by the Tribunal at a final hearing in CC 99/24 but, while dissatisfied with the outcome of the final decision, she did not exercise her appeal rights under Pt 5 of the SAT Act. Rather, in CC 435/24 Dr Saje has simply commenced yet another application in the Tribunal in respect of the same grounds with the result that the Strata Company and the other Lot owners will have to devote time and attention responding to a ground that has been decided in a previous proceeding.
7. For the reasons set out above at paragraphs [58] and [59], I also find that to allow grounds 1, 6, 7 and 8 and proposed order 1 in CC 435/24 to continue would bring the administration of justice into disrepute.
8. With respect to ground 3 and proposed order 3 in CC 435/24 and ground 3 and proposed order 3 in CC 99/24, the levy in issue was the subject of evidence given by the parties at the final hearing in CC 99/24. In CC 99/24 the learned Tribunal member after hearing evidence made the following findings and orders with respect to the levy:

In respect of the amount of $9271 in special contribution levy that the applicant seeks to be refunded to her, I accept the evidence of the respondents, and I find that all lot owners paid the special levy. I further find, based on the minutes of the EGM held on 11 September 2020 and the respondents' evidence, which I accept, that the special contribution levy was approved at the 2020 EGM by poll vote and ratified at subsequent general meetings of the scheme.[19]

...

Consequently, I find no probative evidence to support a finding that the applicant should be reimbursed the sum of $9271 and will decline to make order 5.[20]

...

... Accordingly, for these reasons, I will decline to make order 1 and the declaration sought by the applicant in CC/99 of 2024 and will dismiss the application.[21]

1. The issues raised by grounds 2, 4 and 5 and proposed orders 2, 4 and 5 in CC 435/24 were similarly the subject of evidence in CC 99/24 and were likewise dismissed or finally decided by the dismissal of ground 3 and proposed order 3 in CC 99/24.
2. Given my findings I will now consider whether allowing grounds 2, 3, 4 and 5 and proposed orders 2, 3, 4 and 5 in CC 435/24 to continue would cause oppression or would bring the administration of justice into disrepute.
3. After consideration, for the reasons set out at paragraphs [57] and [59], I find that to allow grounds 2, 3, 4 and 5 and proposed orders 2, 3, 4 and 5 in CC 435/24 to continue would cause oppression to both the Strata Company and the other Lot owners.
4. I also find, for the reasons set out at paragraphs [58] and [59], that to allow grounds 2, 3, 4 and 5 and proposed orders 2, 3, 4 and 5 in CC 435/24 to continue would bring the administration of justice into disrepute.
5. I therefore find that grounds 2, 3, 4 and 5 and proposed orders 2, 3, 4 and 5 in CC 435/24 should never have been commenced and so to allow them to continue would constitute an abuse of process. Under s 47(1)(c) of the SAT Act I will therefore strike out grounds 2, 3, 4 and 5 and proposed orders 2, 3, 4 and 5 in CC 435/24 as an abuse of process.

Have the grounds and proposed orders lodged by Dr Saje in CC 736/24 been dismissed or finally decided by the Tribunal in the earlier proceeding CC 99/24?

1. In CC 736/24 Dr Saje seeks orders under s 197(4) for the resolution of a scheme dispute against the Strata Company.
2. In CC 99/24 Dr Saje sought orders under s 197(4) for the resolution of a scheme dispute against the owners of Lots 1, 2, 4, 5, 6, 7 and 8. This proceeding was heard as a final hearing on 4 July 2024 and on 4 October 2024 the Tribunal declined to make the orders sought by Dr Saje and it dismissed the proceeding.
3. On comparing the grounds and proposed orders in these two proceedings it is apparent that both ground 4 and proposed order 4 in CC 736/24 and ground 4 and proposed order 4 in CC 99/24 relate to the same subject, which is the allegation that the owner of Lot 7 deliberately destroyed property belonging to the Strata Company, although in CC 736/24 this property is valued at $8,576.67 and in CC 99/24 it is valued at $14,280. The property in question is a ceiling in Lot 7 which collapsed and which the owner of Lot 7 is said to have destroyed by having it removed from her property. Both proceedings are commenced under the same provision of the ST Act.
4. The learned Tribunal member in CC 99/24 made the following findings in relation to the ceiling of Lot 7:[22]

...

The applicant says that before the assessor could see the damage to the ceilings caused by mould, Ms Bevans removed the ceilings. The ceilings were subsequently repaired by the strata company at a cost of $14,280.

It is the applicant's position that Ms Bevans removed the ceilings without the approval of the strata company in breach of by-law 13 in schedule 2 to the Act ...

...

Consequently, I find that that aspect of CC/99/2024 that relates to the purported contravention of scheme by-laws by Ms Bevans does not fall within the tribunal's jurisdiction pursuant to section 197(4) of the Act because there is a specific provision in section 47, subsection (3) of the Act that relates to the enforcement scheme by-laws by a lot owner. For these reasons, I will decline to make order 4, sought by the applicant to address the purported breach of the scheme by-laws by Ms Bevans ...[23]

1. When these two proceedings are contrasted the only real difference between them is that in CC 99/24 Dr Saje's proposed order is that the Tribunal order the owner of Lot 7 to repay monies and in CC 736/24 it is that the Council of Owners make an application to the Tribunal to require the owner of Lot 7 to repay monies.
2. After considering the similarities and the difference between these two proceedings I am satisfied that they are substantially similar proceedings. This is because both are proceedings commenced under s 197(4) ST Act, both deal with the same subject and both seek very similar remedies. After considering the differences between them I am also satisfied that these differences are not significant. Consequently, I therefore find ground 4 and proposed order 4 in CC 736/24 are grounds and orders which have been previously determined by a final decision of the Tribunal to dismiss ground 4 and proposed order 4 in CC 99/24.
3. Given this finding, I will now consider whether to allow ground 4 and proposed order 4 in CC 736/24 to continue would cause oppression or would bring the administration of justice into disrepute.
4. After consideration I find that to allow ground 4 and proposed order 4 in CC 736/24 to continue would cause oppression to the Strata Company. This is because Dr Saje has had the issue of the ceiling in Lot 7 considered and finally decided by the Tribunal in CC 99/24 but, while obviously dissatisfied with the final decision, Dr Saje did not exercise her appeal rights under Pt 5 of the SAT Act. Rather, in CC 736/24 Dr Saje has simply commenced yet another application in the Tribunal in respect of the same ground with the result that the Strata Company must now devote time and attention to responding to a ground that has been finally decided in a previous proceeding.
5. After further careful consideration I also find for the reasons I set out at paragraphs [58] and [59], that to allow ground 4 and proposed order 4 in CC 736/24 to continue would bring the administration of justice into disrepute.
6. I therefore find that ground 4 and proposed order 4 in CC 736/24 should never have been commenced and so to allow them to continue would constitute an abuse of process. Under s 47(1)(c) of the SAT Act I will therefore strike out ground 4 and proposed order 4 in CC 736/24 as an abuse of process.

Have the grounds and orders lodged by Dr Saje in CC 435/24 been finally decided by the Tribunal in CC 100/24?

1. In CC 736/24 Dr Saje seeks orders under s 197(4) for the resolution of a scheme dispute against the Strata Company.
2. In CC 100/24 Dr Saje sought orders under s 198(1) for an order authorising her to commence an action in the Tribunal against the strata manager. The respondents to this proceeding were the owners of Lots 1, 4 and 7. This proceeding was heard as a final hearing on 4 July 2024, with the Tribunal delivering its oral reasons and making orders on 4 October 2024. The Tribunal by way of final order dismissed the proceeding.
3. On comparing the grounds and proposed orders in these two proceedings it is apparent that both ground 8 and proposed order 8 in CC 435/24 and ground 2 and proposed order 1 in CC 100/24 relate to the same subject, which is the commencement of a proceeding in the Tribunal against the strata manager in relation to certain payments said to be made by the strata manager on behalf of the Strata Company. Dr Saje alleges that these payments include the strata manager charging the Strata Company 'double GST' and engaging in 'tax evasion'. It is clear from ground 8 in CC 435/24 that Dr Saje relies on the very same evidence she presented in CC 100/24 to found her proceeding in CC 435/24.
4. The learned Tribunal member made the following findings in CC 100/24:[24]

I must be satisfied, before making an order pursuant to section 198, subsection (1) of the Act, that the strata company has unreasonably refused to make an application to the tribunal. Whilst the applicant gave evidence at the final hearing, she did not provide any evidence from an independent expert or expert witness, such as an accountant, to support her claims of financial mismanagement by Southern Strata. In the absence of such evidence, I am unable to make any findings about the applicant's claims that Southern Strata is charging double GST, has been involved in tax evasion, or is otherwise defrauding the strata company.

There was no dispute and I find that in 2023 the strata management contract did lapse. I accept the evidence of Ms Maxwell, and I find that a periodic agreement was entered into to cover the period between 6 October 2023 and 9 November 2023 retrospectively. Further, I accept the evidence of Ms Maxwell, and I find that she was instructed by the council of owners to call the 2023 AGM, and therefore I find that she was acting as agent of the strata company at that time, for the purposes of calling the 2023 AGM.

As already stated, the applicant contends that the council of owners was not validly elected at the earlier 2023 EGM held on 24 May 2023 and therefore did not have the authority to request that the strata manager call an AGM. For the reasons already given, there is insufficient evidence before me to establish the appointment of the council of owners at the 2023 EGM was invalid. Consequently, I am satisfied that the AGM held on 9 November 2023 was validly called. I observe that the strata company has now entered into a management contract with Southern Strata that automatically renews, to avoid the same situation arising.

Further, whilst one of the respondents in oral evidence did express dissatisfaction with the quality of strata management services provided by Ms Maxwell, the remaining respondents in this proceeding, which comprise six of the eight lot owners of the scheme, did not express concerns about the conduct of Ms Maxwell or the activities of Southern Strata as specifically alleged by the applicant. For these reasons, I am not satisfied that the strata company has unreasonably refused to make an application to the tribunal against Southern Strata, and accordingly I will dismiss the application in CC/100 of 2024.

1. Despite these similarities there are, however, some differences between the two proceedings.
2. The first difference between them is that in CC 100/24 the proceeding is under s 198(1) and in CC 435/24 the proceeding is under s 197(4).
3. However, while the preconditions between s 198(1) and s 197(4) are different they are not significantly different. The similarity between s 198(1) and s 197(4) can be seen on examination of the preconditions which would permit the Tribunal to make the orders sought by Dr Saje in each proceeding. Section 198(1) permits the Tribunal on an application by a member of the Strata Company, if it is satisfied that the Strata Company has unreasonably refused to make an application to the Tribunal under the ST Act, to authorise the member to make the application on behalf of the Strata Company. The order sought is to permit Dr Saje to make an application on behalf of the Strata Company to terminate a contract with a strata manager because the Council of Owners has improperly entered, has improperly continued or has improperly refused to acknowledge the termination of the contract. For the purpose of s 197(4), s 197(1) defines a scheme dispute to include a dispute between scheme participants (which would include Dr Saje as a Lot owner) about the resolution or decision of the Strata Company or the Council of Owners of the Strata Company, which would include a dispute about the alleged improper decision of the Council of Owners to enter, to continue or to refuse to acknowledge the termination of a contract with a strata manager. The order sought by Dr Saje is an order that the contract is terminated.
4. The only real difference between these proceedings therefore is that in CC 100/24 Dr Saje's proposed order is that the Tribunal authorise her to commence a proceeding against the strata manager and in CC 435/24 it is that the Tribunal direct the Council of Owners to commence a proceeding against the strata manager.
5. After considering these differences and similarities I am satisfied and I find that even though the proceedings are commenced under different provisions of the ST Act that the deliberations that the Tribunal did make in CC 100/24 and those which it would make if it was required to determine ground 8 and proposed order 8 in CC 435/24 are substantially similar. I am therefore satisfied and I find that ground 8 and proposed order 8 in CC 435/24 should be struck out as this is a matter which has been previously dismissed or finally decided by the dismissal of ground 2 and proposed order 1 in CC 100/24.
6. Given this finding I will now consider whether allowing ground 8 and proposed order 8 in CC 435/24 to continue would cause oppression or would place the administration of justice into disrepute.
7. After consideration I find that to allow ground 8 and proposed order 8 in CC 435/24 to continue would cause oppression to the Strata Company and to the owners of Lots 1, 2, 4, 5, 6, 7 and 8. This is because Dr Saje has had the merits of this ground considered at the final hearing in CC 100/24 but, while obviously dissatisfied with the final decision, Dr Saje did not exercise her appeal rights under Pt 5 of the SAT Act. Rather, in CC 435/24 Dr Saje has simply commenced yet another application in the Tribunal in respect of the same ground with the result that both the Strata Company and to the owners of Lots 1, 2, 4, 5, 6, 7 and 8 must now devote time and attention to responding to a ground that has been finally decided in a previous proceeding.
8. After further consideration I also find for the reasons I set out at paragraphs [58] and [59] that to allow ground 8 and proposed order 8 in CC 435/24 to continue would bring the administration of justice into disrepute.
9. I therefore find that ground 8 and proposed order 8 in CC 435/24 should never have been commenced and so to allow them to continue would constitute an abuse of process. Under s 47(1)(c) of the SAT Act I will therefore strike out ground 8 and proposed order 8 in CC 435/24 as an abuse of process.

Have the grounds and orders lodged by Dr Saje in CC 736/24 been finally decided by the Tribunal in CC 100/24?

1. There are no similar grounds or orders in common between CC 736/24 and CC 100/24. Consequently, for the reasons given at paragraph [61] there is no reason to consider this aspect of the strike out application any further in these reasons.

1. The following schedule summarises my findings on the strike out applications:

1. Pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA), proceeding CC 435/24 is struck out and is at an end in respect of each of the grounds 1, 2, 3, 4, 5, 6, 7 and 8 and proposed orders 1, 2, 3, 4, 5, 6, 7 and 8.
2. Pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA), proceeding CC 736/24 is struck out and is at an end in respect of each of the grounds 1 and 4 and proposed orders 1 and 4.
3. The matter is adjourned to a further directions hearing at a time and on a date to be determined by the Tribunal for the purpose of listing the remaining grounds and orders sought in the proceedings to final hearing.

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

[1] Dr Saje's co-owner Lisa Saje has not taken an active part in either CC 435/24 or CC 736/24. I have accepted Dr Saje's assurance that she is authorised by her co-owner to represent the co-owner in both CC 435/24 and CC 736/24.

[9] Hearing Book (HB), CC 435/24, pages 14 - 15 and page 20.

[10] I understand Dr Saje to mean the Council of Owners of the Strata Company when she uses the expression 'CoO'.

[12] HB, CC 736/24 pages 10 - 11 and page 16.

[14] Saje and Sampson [2023] WASAT 101 (Saje and Sampson).

[15] Legal Services and Complaints Committee and McCardle [No 2] [2023] WASAT 131 (McCardle [No 2]) at [117] to [126].

[17] I am a legally qualified member of the Tribunal.

[18] Laurent and Commissioner of Police [2009] WASAT 254.