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[2013] WASAT 53
General information, not legal advice.
State Administrative Tribunal (WA)
2013-04-17
Original judgment source is linked above.
The applicant applied under s 97 of the Strata Titles Act 1985 (WA) for an order invalidating a resolution passed at an extraordinary general meeting proposing alterations to common property.
The alterations to common property involved the removal of gardens, a brick screen wall, clothes line and the provision of paving to the affected areas to create two additional car bays. The Tribunal concluded that the proposed works could not be justified as being necessary on grounds of safety and security. In order to be necessary, the evidence would have to show that the alterations were essential, rather than simply desirable, to enable owners to enjoy the benefit of their respective lots and share of the common property.
Although the Tribunal found that the proposed works fell within the scope of the respondent's obligation to control and manage the common property, it determined that the proposal was not for the benefit of all the proprietors. This was because the ground floor lots, and, in particular, the applicant's lot, would suffer a significant detriment in loss of amenity. In coming to this conclusion, the Tribunal rejected submissions that it should not interfere with the decision on the basis of previous decisions recognising that in cases in which a decision could be set aside if found to be unreasonable, the Tribunal should be slow to substitute its decision for that of the strata company. The Tribunal held that there were some obligations of the strata company which had to be objectively assessed by the Tribunal, such as whether the strata company had met its obligation to properly maintain common property or, as in this case, whether a decision was for the benefit of all the proprietors.
Finally, the Tribunal found that relief under s 97 of the Strata Titles Act 1985 (WA) was restricted to cases where there had been a failure to comply with the legislation in relation to the convening or conduct of a meeting. Consequently, the applicant was not entitled to the relief sought. In order to discharge its obligations to deal with the substantial merits of the dispute, the Tribunal afforded the applicant an opportunity to amend the application to invoke the Tribunal's general dispute resolving powers under s 83 of the Strata Titles Act 1985 (WA) and made consequential programming orders for that purpose.
Anastos and The Owners of Labouchere Close Strata Plan 11507 [2005] WASAT 262
Banning and The Owners of 106 Terrace Road Perth Strata Plan 6289 [2006] WASAT 296
Brosolo and Council of Owners of 25 St Leonards Strata Plan 352 [2008] WASAT 285
Francis and The Owners of Broome Vacation Village [2006] WASAT 134
Grant and The Owners of Rosneath Farm - Strata Plan 35452 [2006] WASAT 162
Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1
Sisto and The Owners of Glenway Gardens Apartments [2005] WASAT 282
The Owners of St John's Court Rivervale Strata Plan 6052 and Clark (No 2) [2011] WASAT 16
1 The respondent strata company is charged with control and management of the common property for the benefit of all the proprietors as existing within the parcel depicted in the strata plan which was registered on 31 March 1995. The building comprised within the strata plan consists of six lots. Each lot includes a patio and a car bay.
2 On 15 May 2012 an extraordinary general meeting of the strata company considered, amongst other business, two proposals relating to car bays. The first proposal was that an additional two car bays be established in accordance with a proposed plan and that they remain unallocated (Proposal 1). The second proposal was that the additional two car bays (to be created in accordance with Proposal 1) plus four existing unallocated car bays be designated exclusive use as per the proposed plan (Proposal 2). Lots 1 to 3, inclusive, voted against Proposal 1 on a show of hands resulting in a deadlock. A poll vote was then called with Lots 1 to 3 again voting against but the motion was carried on the basis that the proprietors of Lots 4 to 6 who voted in favour had unit entitlements totalling 51 in favour of the resolution, whereas the unit entitlement of Lots 1 to 3 voting against totalled 48.
3 As the applicant, Ms Seghezzi, foreshadowed the making of an application to the Tribunal to challenge the validity of the resolution in respect of Proposal 1, the meeting resolved that Proposal 2 'lie on the table for future consideration'.
4 Ms Seghezzi has made the contemplated application. She has done so under s 97 of the Strata Titles Act 1985 (WA) (ST Act) seeking an order that the resolution be invalidated. In these reasons, in order to avoid unnecessary repetition, references to particular sections, divisions or parts of legislation are all references to the corresponding sections, divisions and parts of the ST Act unless otherwise expressly stated.
5 The plan to which reference has been made shows that under Proposal 1 two additional car bays were to be created, one immediately adjacent to the northern wall of Lot 2, and the other immediately adjacent to the western wall of Lot 2, which is owned by Ms Seghezzi. It is apparent that at some stage the members of the strata company had agreed to create five other car bays. Two of these are situated, one on either side of the existing car bays, and the eastern and western boundaries of the parcel at the rear of the parcel running along the northern boundary. The other three car bays are on the eastern side of the southern boundary near the front entry off The Avenue. The plan shows that under Proposal 2, two of the front car bays are intended to be allocated to Lots 1 and 3. In relation to the two additional car bays proposed adjacent to Lot 2, the most western car bay is marked to be allocated to Lot 2 and the northern car bay to Lot 4. The two remaining car bays at the rear of the property are to be allocated as to the most western bay to Lot 5 and the most eastern bay to Lot 6. The remaining car bay at the front of the parcel is shown on the plan as being for visitor parking.
6 In order to create the car bay proposed for Lot 2, it is necessary to remove a tree and a garden bed. The tree is immediately adjacent to a bedroom window on the western wall of Lot 2, and provides shade and protection from the late afternoon sun. In order to create the car bay proposed for Lot 4, it would be necessary to remove a small garden bed and also a brick wall which screens a clothes line situated on the eastern part of the northern wall of Lot 2.
7 Lots 1 and 2 are on the ground floor, Lots 3 and 4 on the first floor and Lots 5 and 6 on the upper floor.
8 Because Proposal 2 lies in abeyance, the challenge raised by Ms Seghezzi relates to what she refers to in her application as the two additional unallocated car bays. These are understood to be the car bays described above as being intended (under Proposal 2) to be allocated to Lots 2 and 4 immediately adjacent to the western and northern walls of Lot 2, respectively. Ms Seghezzi contends that the resolution passed in respect of Proposal 1 is not for the benefit of all proprietors.
9 The respondent strata company has filed a submission to the effect that the process followed in convening and conducting the meeting at which the resolution in issue was passed was in accordance with the Act, and has otherwise left it to the individual proprietors, who were duly notified of the proceedings and invited to participate, to advance their own interests.
10 Written submissions were received from the owners of Lots 4, 5 and 6 opposing the application and supporting the resolution passed at the extraordinary general meeting. Letters were attached to the submissions from the owner of Lot 4 from the tenants occupying Lots 2, 4 and 6 supporting the proposal. Apart from the material provided by Ms Seghezzi with her application, she filed a replying submission by way of response to the submissions opposing the application. Attached to the replying submission is a further letter from the tenant of her property, Lot 2. Regard has been had to all of this material.
11 It should be noted that the parties requested that the matter be determined on the documents. The Tribunal made directions that the matter be so determined subject to further order of the Tribunal. There are a number disputes of fact which have been raised in the material provided to the Tribunal. It is not possible to resolve those disputes on the documents, but I have concluded that it is possible to arrive at a fair determination of the matter on the basis that any such disputes are peripheral in nature and do not affect a proper determination of the matter on the documents.
12 The submissions and material provided by the parties reveal that the matter can be resolved by a determination of the following overriding issues.
13 Section 35(1)(b) provides that a strata company shall control and manage the common property for the benefit of all the proprietors. A decision made to alter the common property can be justified as coming within the obligation to control and manage the common property where the alteration is necessary on the grounds of safety and security: see Sisto and The Owners of Glenway Gardens Apartments [2005] WASAT 282 (Sisto) at [26] and following.
14 The owner of Lot 5, Mr David Freeman, has provided a submission supporting the decision on this basis. The question of safety and security is raised very briefly by the owner of Lot 6, Kelshore Pty Ltd, as a ground for justification of the decision, as do letters received from three tenants, although one of them, the tenant of the applicant residing in Lot 2, has resiled from the original support of Proposal 1. The original statement by the tenant of Lot 2 was brief, simply to the effect that the lack of on street parking near the apartment is a safety concern. The withdrawal of support is based upon the tenant only having one motor vehicle. The tenant of Lot 4 stated that there is other available street parking some distance away and it is unsafe to have to walk alone sometimes late at night. The tenant of Lot 6 referred to an incident when his or her motor vehicle was towed away from outside the property by the local council. The motor vehicle had been damaged and it can be inferred that it was not moved from the parked position for some time. The statement is then made that the adjacent street is often extremely busy and it can be hard to see down the road so that it is dangerous getting in and out of the property, and that it is much safer and more secure to have motor vehicles behind security gates than out on the busy road 'where they can easily be damaged or stolen'.
15 Mr Freeman's submission states that creating additional car bays inside the security gates and in a securely lit area increases security and safety and minimises the risk to those who would otherwise be parking on the street in terms of safety to person and property. He refers to the introduction of gates which resulted in the provision of a secure parking area so that vehicles, personal property and people are safer and more secure. He refers to various incidents that occurred prior to the introduction of the gates. He further provides information suggesting that there is a general shortage of parking area around the University of Western Australia (which is close to the property). Reference is also made to the better security lighting within the parcel as compared to the outside street. It is stated that a previous tenant of the applicant's Lot 2 was a tradesman who expressed concerns about leaving his or her vehicle on the street because of the risk that tools might be stolen. Reference is also made to the incident mentioned above when the tenant of Lot 6 had a motor vehicle towed away from outside the property.
16 The owner of Lot 6, Kelshore Pty Ltd, refers to the lack of parking in the adjacent street, the narrowness of the road and the volume of traffic which, it is stated, creates a potentially dangerous situation exiting and entering into the parcel, especially at night. It is stated that residents' cars had been repeatedly vandalised, although it is not stated whether this was before or after the secure gates were provided. When read with the submission from Mr Freeman, it is understood that any vandalising of vehicles occurred prior to the introduction of the gates. It is not clear whether that occurred when the motor vehicles were within the parcel or outside on the street. It is submitted by Mr Freeman that the decision in Anastos and The Owners of Labouchere Close Strata Plan 11507 [2005] WASAT 262 (Anastos) establishes that a strata company decision to add car bays within the scheme can be justified based on the risks posed by busy roads in order to minimise risk.
17 Without deciding the issue and subject to consideration of Anastos later, I do not rule out the possibility that a decision to make alterations to common property within a strata scheme may be justified, because of dangers external to the strata parcel. There may be circumstances which are sufficiently clear to show that it is necessary to contain parking wholly within the parcel because of risk of injury to lot owners, invitees or to owners' property, but I do not consider that the material provided is sufficient to support such a conclusion in this case. The applicant states that she is unaware of any vehicle of a resident of a lot being vandalised in the last five years and that there is no direct evidence to support the assertions to that effect. The risks inherent in the adjacent street being a busy one is not avoided by parking inside the parcel and, indeed, the submissions refer to danger when entering or exiting from the parcel which, if anything, would occur more often if additional car bays were provided within the parcel. The information provided is insufficient to support a conclusion that there is any external danger sufficient to justify the decision in question.
18 It is not sufficient that there is some risk which can be avoided. The level of risk must be such that it is necessary to effect the alteration on the grounds of safety and security. An alteration can only be said to be necessary if the circumstances are such that it becomes an essential alteration: see Shorter Oxford English Dictionary (5th ed, 2002) Oxford University Press:
B adjective. That cannot be dispensed with or done without: requisite, essential, need for ...
19 This suggests that the level of risk must be such that the alteration is not simply something that is desirable, but is rather, something which is essential to enable owners to enjoy the benefit of their ownership of the lot and common property.
20 It needs to be realised that the lot proprietors hold the common property as tenants in common in shares proportional to their respected unit entitlements. This is not a right which should be lightly interfered with because some owners would like to alter the common property. Accordingly, I consider that for any external risk to justify an alteration to common property on the grounds of safety and security, the need for the alteration is one which a right thinking person would have to regard as being obvious.
21 I should also add that I do not regard the Anastos decision as supporting Mr Freeman's contentions. In that case there was no challenge of whether additional car bays could be provided within the parcel. The dispute was whether additional parking could be provided adjacent to certain lots without providing parking adjacent to the lot of the applicant in that matter.
22 There has been no suggestion that the proposed works could be conducted under the strata company's obligation under s 35(1)(c) to keep in good and serviceable repair, properly maintain and, where necessary, renew and replace common property. The issue is simply whether the proposed work can be conducted as part of the strata company's control and management of common property.
23 The applicant states that the works involve the removal of garden beds, shrubbery and a tree adjacent to the western wall of Lot 2, the paving of that area, the marking of car bays, the removal and reinstallation of a clothes line on the northern wall of Lot 2, the removal of a wall which screens the clothes line on the northern face of Lot 2 and, to a lesser degree, some shrubbery immediately adjacent to the northern wall of Lot 2 on the western side. The applicant suggests that the wall would also need to be rebuilt, but the basis for that assertion is not clear. On the face of it, the rebuilding of the wall in any different position appears likely to affect vehicle movement. None of the drawings or plans submitted appear to show a new wall. I find the work to be undertaken is as described above but excluding any replacement of the screen wall.
24 In my view, any paving work and alteration to landscaping is work which falls within the ordinary ambit of control and management of common property: see Sisto. The only area of potential controversy relates to the removal of the screen brick wall. While I have found that the works do not include the reconstruction of the screen wall in a different position, as will appear, the inclusion of that work (should my finding in that respect be wrong) would not affect the conclusion I have reached as to the characterisation of the works.
25 It is obviously a question of fact and a matter of degree as to when any alteration of common property goes beyond control and management. In Sisto, the Tribunal, the constitution of which included Judge Chaney, as he then was, and who is the current President of the Tribunal, found that the relocation of a bin enclosure, involving the removal of an existing concrete up stand and some lattice, and the construction of new masonry walls on either side of the new bin enclosure was work which fell comfortably within the ambit of control and management of the common property. In this case, the removal of a wall screening a clothes line would also clearly fall within the control and management of common property, as would its construction in a new position, if contrary to my finding, that is part of the works required under Proposal 1.
26 It follows that the only basis upon which the decision to carry out the proposed works could be impugned would be if it can be determined that the Proposal 1 is not for the benefit of all proprietors being part of the obligation imposed on a strata company under s 35(1)(b).
27 The Tribunal has been referred in a number of the submissions opposing the application to previous decisions of the Tribunal emphasising the principle that the Tribunal should be slow to interfere with the management decision of the strata company unless it is unreasonable, and that a decision is not unreasonable merely because the Tribunal might come to a different decision on the basis of the same facts: see, for example The Owners of St John's Court Rivervale Strata Plan 6052 and Clark (No 2) [2011] WASAT 16 at [42] in which reference is also made to The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1 at [58] (Russell). It was observed that the commentary in Russell was concerned with the refusal of consent to a proposal, the subject of a s 85 application, (asserting an unreasonable refusal to consent to alterations to common property), but that the principle applied equally to other aspects of decisionmaking by a strata company. While this is correct, it does not mean that the principle applies to all aspects of decisionmaking. There are some duties, with corresponding powers, which are qualified in terms which require objective assessment and in relation to which the opinions of the members of the strata company which formed the basis of a decision are not relevant.
28 In Brosolo and Council of Owners of 25 St Leonards Strata Plan 352 [2008] WASAT 285, the respondent council raised that even if the Tribunal were to order maintenance to be carried out, the majority of owners who were opposed to carrying out the work would not authorise the strata council to incur the expenditure so as to enable the council to have the work completed. The Tribunal stated, at [46]:
The obligation under s 35 of the ST Act is to properly maintain. That is a standard which can be tested objectively. There is nothing in the legislation which in any way qualifies that standard by reference to the financial capacity of the owners. This conclusion is consistent with previous decisions of the Strata Titles Referee.
29 The same can be said of the obligation under s 35(1)(b) to control and manage the common property for the benefit of all the proprietors.
30 Accordingly, when a dispute arises, as in this case as to whether the control and management of the common property is for the benefit of all the proprietors, it is for the Tribunal to determine objectively whether or not that is the case. The requirement that the management and control of common property be for the benefit of all the proprietors is a good governance provision so that the effect of a proposal in the context of all rights and obligations relating to the scheme must be assessed: see Grant and The Owners of Rosneath Farm - Strata Plan 35452 [2006] WASAT 162 (Rosneath) at [100] [104] and Banning and The Owners of 106 Terrace Road Perth Strata Plan 6289 [2006] WASAT 296 (Banning) at [33] [36].
31 A cornerstone of the submissions made in support of Proposal 1 is that there is a need for additional car bays. Mr Freeman makes reference to City of Subiaco, Parking Study Research Report 223694 dated 12 September 2012, which he submits demonstrates the shortage of parking around the University of Western Australia, the campus of which is in close proximity to the parcel. The applicant has not challenged this information and I therefore accept that there is a general shortage of street parking in the vicinity.
32 The applicant nevertheless contends that there is no actual demand or need for additional car bays within the parcel. She has stated that on the 18 February 2013, she surveyed the property and has recorded that at 3 pm, there was one motor vehicle, at 9 pm there were five motor vehicles and at 11.15 pm there were six motor vehicles within the parcel. She points out that both of the two paved car bays at the front of the property and both of the paved areas on either side of the northern car bays were vacant. She states that her tenant of Lot 2 has only one motor vehicle and to the best of her knowledge the occupants of Lot 4 also only have one motor vehicle. The applicant also states that the Subiaco City Council will issue residential parking permits if any owner or occupier needs to park on the street.
33 The submission for Kelshore Pty Ltd has attached an extract from the City of Subiaco Town Planning Scheme No 4 relating to car parking, and asserts that this demonstrates that if the building were to be developed today, the scheme would require provision for 10 car bays. However, under that planning scheme, that assertion is dependent upon the parcel not being located within 800 metres of a train station or 200 metres of a high frequency bus route. There is no information provided on those matters. If the parcel were to be within the specified distances of a train station or high frequency bus route, on my application of the table set out under cl 7.3.3 para A3.1 of the planning scheme would result in a design requirement of 8.25, which would be rounded up to 9 car bays. Without the additional proposed two car bays, there are already 11 car bays provided.
34 Having regard to all the material provided, I find that there is no pressing need for the additional two car bays. That, however, does not mean that there are not advantages in the provision of additional car bays.
35 The survey undertaken by the applicant on one day is not necessarily representative of parking requirements over a more extended period. While some tenants may only have one vehicle now, that can change in the future. As a matter of ordinary common sense, it is obvious that additional car bays would be convenient.
36 Further, Proposal 1, which is the subject of this review, was made in conjunction with Proposal 2, which has been held over because the applicant had indicated that she would challenge Proposal 1. Proposal 2, as reflected in the minutes of the extraordinary general meeting dated 15 May 2012, is that the additional two car bays plus the four existing unallocated bays be designated exclusive use as per a plan circulated at the previous annual general meeting. The applicant's submissions reflect that when Proposal 1 was put to the meeting, the primary argument advanced on behalf of the owner of Lot 4 was that it would increase the sale value of the apartments if each had access to two car bays rather than one.
37 It is obvious, therefore, that if the applicant is refused relief in these proceedings, Proposal 2 will be advanced. The basis upon which the applicant counters this increase in capital value argument is relevant to the necessary weighing of the respective advantages and disadvantages in order to determine whether it can be said that the decision was made for the benefit of all the proprietors. Before addressing those factors, and to avoid the risk that by not referring to the question of capital value, the Tribunal might be seen to be endorsing the applicant's submission that Proposal 1 is not for the benefit of all proprietors as the proprietors will not benefit equally from an increase in capital value, I expressly note that the submission is not accepted. It is not necessary, and it is almost inevitable in considering any alteration to common property, that lot owners will not necessarily benefit equally: see Rosneath at [103].
38 I am satisfied on all the information provided that there is an argument which can be advanced in favour of the additional car bays, based on the convenience and increased enjoyment in the amenity of the lots and common property which would come with the additional bays. The question, however, is whether any disadvantages which the applicant might suffer are sufficiently significant to result in a conclusion that the decision cannot be regarded as being for the benefit of all of the proprietors: see Banning. The applicant raised, in the context of the suggestion of increased capital value, that she was concerned that increased vehicle parking and traffic around her ground floor apartment would be detrimental to the amenity, its value and leasing attractiveness. Each of those matters is advanced separately, as well, not limited to the question of capital value appreciation.
39 The applicant submits that the ground floor location of Lot 2 has made it attractive to families with children, including toddlers. She is concerned that if Lot 2 is to have car bays adjacent to its walls and windows, this will affect the attractiveness of the property to potential tenants as issues of noise, privacy and safety, she submits, will arise.
40 In relation to the removal of the garden area, the applicant submits as follows:
The garden area where car bay 4 is to be located is located next to the window of a bedroom currently housing a child of my tenant.
The Garden bed provides a pleasing green and lush outlook from that room. That bedroom window is next to the driveway area and is used by residents to move to and from the current car parks at the rear of property (sic) to their apartments in the building. The current garden bed vegetation reaches the top of the window and provides excellent privacy to the room from this through traffic. It also provides a (limited) noise barrier to the window from vehicle and pedestrian movement up and down the driveway. Further, that window receives the hot summer afternoon sun, and the current garden bed provides significant sun protection of the bedroom wall and window.
41 I accept and find that the general movement of additional motor vehicles in close proximity to Lot 2 is detrimental to the use and enjoyment of Lot 2. In particular, the manoeuvring of a motor vehicle by a person who wanted to park in what is designated as Bay 3 (as marked in the plan attached to the submission of Mr Freeman) is likely to disturb and cause detriment or inconvenience, particularly at night, to the occupants of Bedrooms 1 and 3 of Lot 2 (as marked on the detailed floor plan of Lot/Unit 2 which is also attached to the submission of Mr Freeman). Similarly, the use of Bay 4 is likely to disturb the occupants of Bedrooms 2 and 3 (as shown on the same plans to which reference has already been made). As these are smaller bedrooms than Bedroom 1, they are more likely to be used for children, and even parking during the day may therefore be disturbing. I also accept that the outlook from Bedroom 3 would be adversely affected and, importantly, the removal of protection from the afternoon sun would substantially detract from the amenity of the room.
42 I do not accept the applicant's submission in relation to the increased danger to children as a result of any increased vehicle use. The driveway would not be a safe place for children, even without the additional car bays. There are pleasant gardens on the eastern side of the building and this is more likely to be the place where children can play. If children do play in the driveway (which under the by-laws requires them to be under the supervision of an adult) the risk of injury will not be appreciably different. While there would be some increase in risk to children, it is not a factor which I consider would affect the determination of this matter.
43 In addition to the above factors, I also take into account that the vote in favour of the proposal was passed by the narrowest of margins. The proposal failed on a show of hands with the owners of Lots 1, 2 and 3 opposing and the owners of Lots 4, 5 and 6 supporting the proposal. The proposal was then passed by a poll vote, with 51 units of entitlement in favour and 48 units of entitlement against. Lots 1 and 2 are both ground floor apartments and are therefore most affected by vehicular traffic.
44 Taking all factors into account, I consider that the applicant will suffer a significant detriment as a result of Proposal 1 when compared with the general benefits which will flow from the proposal, such that I find that the proposal cannot be said to be for the benefit of all the proprietors.
Can the resolution to carry out the work be set aside under s 97?
45 The application has been made by the applicant under s 97(1), which provides as follows:
Power of State Administrative Tribunal to invalidate a resolution or election
(1) Where, pursuant to an application by a proprietor or first mortgagee of a lot for an order under this section, the State Administrative Tribunal considers that the provisions of this Act have not been complied with in relation to a meeting of the strata company, the State Administrative Tribunal may, by order
(a) invalidate any resolution of, or election held by, the persons present at the meeting; or
(b) refuse to invalidate any such resolution or election.
(2) The State Administrative Tribunal shall not make an order under subsection (1) refusing to invalidate a resolution or election unless it considers
(a) that the failure to comply with the provisions of this Act did not prejudicially affect any person; and
(b) that compliance with the provisions of this Act would not have resulted in a failure to pass the resolution, or have affected the result of the election, as the case may be.
46 Miss Agnello, the owner of Lot 1, has specifically challenged the power of the Tribunal to grant the applicant any order under s 97(1) on the basis that no case has been made out that process of convening the extraordinary general meeting at which the resolution in question was passed, or the conduct of the meeting, was not in accordance with the Act. It is noted that the applicant does not take issue with any of the procedures followed in convening and conducting the meeting in question.
47 In Francis and The Owners of Broome Vacation Village [2006] WASAT 134 (Francis), the Tribunal concluded that no relief could be granted to the applicant in those proceedings under s 97 on the basis that there was no evidence to suggest that the convening or conduct of the annual general meeting in question was in breach of the Act or that the provisions of the Act had not been complied with in any other way insofar as the enactment of a by-law (which the applicant sought to have invalidated) was concerned. In coming to the conclusion that s 97 could not be applied, the Tribunal examined only the process followed in convening and conducting the meeting.
48 In order to conclude that s 97, insofar, as it concerns compliance with the provision of the Act in relation to a meeting of the strata company, is limited to a consideration of the process of convening and conducting the meeting, it is necessary for that construction to be supported having regard to the context of the legislation as a whole. The phrase 'in relation to' is vague and indefinite, and it is the context which determines whether the relationship must be direct or substantial, or whether an indirect or less than substantial connection will suffice: see the discussion and authorities referred to in Words and Phrases Legally Defined, Vol 1, LexisNexis Butterworth's, 4th ed, 2007.
49 The general scheme of the dispute resolution provisions of the Act, as set out in Pt VI, provide the Tribunal with wide ranging powers which convey an intent that, subject to certain express limitations, it is intended that the Tribunal resolve disputes which arise in the course of the management of strata companies. Notable exceptions are that, where the Act requires a unanimous resolution or resolution without dissent and a requisite resolution is not achieved, a person who voted in favour of the resolution may apply to the District Court for an order deeming the resolution to have been passed. That notwithstanding, the Tribunal has jurisdiction to grant relief where a resolution without dissent or unanimous resolution is not given in relation to an application for an alteration to a lot (s 103F). A further exception is that the Tribunal does not have jurisdiction to deal with a case in which title to land is in question. This would tend to support a wider interpretation of s 97 so that an indirect or less than substantial connection with the meeting itself would suffice. Ultimately, however, there are two factors which point to a narrower interpretation of s 97 consistent with the decision in Francis.
50 Firstly, s 93(5) qualifies the wide ranging powers granted by s 93 to invalidate by-laws to the effect that such power is specifically excluded in relation to a by-law made or deemed to be made under s 42(8) (relating to the grant of exclusive use or special privileges). A wider interpretation of s 97 appears inconsistent with s 93(5), because it would allow a resolution creating such a bylaw to be impugned before the Tribunal when the bylaw itself cannot be challenged. Further, s 83 empowers the Tribunal to make an order for the settlement of a dispute with respect to the exercise or performance of a power, authority, duty or function inferred or imposed by the Act, although excluding a duty or function which may only be exercised or performed pursuant to a unanimous resolution, or resolution without dissent, or a special resolution, or in respect of any matter referred to in any other section of Pt VI. The effect of this exclusion is that s 83 cannot be used if a specific power is provided elsewhere under Pt VI, but it does mean that it is possible to reconcile s 93 and s 97 because if it is accepted that s 97 must be read narrowly, there remains a mechanism for the resolution of the type of dispute which has arisen in this matter, namely s 83.
51 I accordingly conclude that it is not open to the Tribunal to grant the remedy sought by the applicant under s 97. The applicant referred to Banning in the grounds supporting her application. In my view, on a proper reading of the Banning decision, the remedy granted to the applicant was based on specific findings that the resolution in question was insufficient because no provision had been made to authorise the expenditure which would be incurred in carrying out the work. There was a wider discussion concerning whether the decision made was in the best interests of all the proprietors, but that was in a context in which the strata company had indicated that it did not intend to proceed with the proposed works, but there was a risk of the dispute resurrecting itself in a different form so that the Tribunal's reasons were more expansive than would otherwise have been necessary.
52 For the reasons given, I am satisfied that the decision made reflected in the resolution passed at the extraordinary general meeting of the respondent strata company on 15 May 2012 was contrary to s 35(1)(b) because the decision, although relating to the control and management of common property, was not for the benefit of all the proprietors. The application, however, has been brought under the wrong section of the Act.
53 The Tribunal's objectives require that it achieve the resolution of disputes according to the substantial merits of the case with as little formality and technicality as is practicable (s 9 of the State Administrative Tribunal Act 2004 (WA)). The question therefore arises whether the applicant should be permitted to amend the application to reflect that she relies upon s 83 of the Act to support an order consistent with that sought in the application. The order sought would therefore also require amendment. If the application is amended, the order could simply be in terms which reflect that the Tribunal determined that the proposal to create additional parking pursuant to the resolution in question is contrary to s 35(1)(b) and that the respondent is therefore not entitled to proceed with its proposal to create the two additional car bays.
54 In the circumstances, I will not make any final order in these proceedings but will issue orders affording the applicant an opportunity to advise whether she elects to amend the application in the above manner, and if so, allowing those opposing the application to file any further submissions they might wish to make opposing the amendment.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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