1. The respondent relies on various provisions of s 42 of the Prior Act which includes:

(6) Without limiting the operation of any other provision of this Act, the by-laws for the time being in force bind the strata company and the proprietors and any mortgagee in possession (whether by himself or any other person) or occupier or other resident of a lot to the same extent as if the by-laws had been signed and sealed by the strata company and each proprietor and each such mortgagee, occupier or other resident respectively and as if they contained mutual covenants to observe and perform all the provisions of the by-laws.

...

(9) After the expiration of the period of 2 years that next succeeds the making, or purported making, of a by-law referred to in subsection (8) (including a by-law so referred to that amends, adds to or repeals another by-law), it shall be conclusively presumed that all conditions and preliminary steps precedent to the making of the by-law have been complied with and performed.

(10) Any by-law referred to in subsection (8) shall, while it remains in force, enure as appurtenant to, and for the benefit of, the lot in respect of which it was made and the proprietor, occupier and (subject to the terms of the by-law) any other resident thereof for the time being.

(11) The proprietor for the time being of a lot in respect of which a by-law referred to in subsection (8) is in force -

(b) is, unless excused by the by-law, responsible for the performance of the duty of the strata company under section 35(1)(c) in respect of the common property, or the part of the common property, to which the by-law relates.

1. The respondent contends that the 'preliminary steps precedent' referred to in s 42(9) of the Prior Act is a reference to the consent in writing of the then proprietor of the relevant lot and the need for a resolution without dissent.
2. It follows, according to the respondent, that for the purposes of s 42(9) of the Prior Act the consent in writing of the then proprietor of the applicant's lot is presumed to have been obtained.
3. The respondent says further that having regard to the terms of the exclusive use by-law, the reference to 'each proprietor who signs a written consent' in by-law 19.2 is used in the present tense and refers to the proprietor at the time when the exclusive use by-law was registered.
4. Relying on Jarvis and The Owners of Horizon Apartments on Central Strata Plan 53941[28] (Jarvis) the respondent contends that:

(1) the lot owner [lot 71] had at all relevant times exclusive use of the relevant common property;[29]

(2) a literal interpretation requiring the written consent of each lot owner from time to time would be inconsistent with the statutory context, in particular s 42(8) of the Prior Act;[30] and

(3) two years had passed since the registration of the exclusive use by-law such that s 42(9) applied and the strata company is taken to have granted exclusive use of the relevant common property.[31]

1. With respect to the applicant's submission that a lot owner ought not be bound by the terms of an exclusive use by-law, without having consented to it or being aware of its terms, the respondent says, once passed, an exclusive use by-law is no different to any other scheme by-law, which is binding on a lot owner as a statutory contract pursuant to sub-sections 45(1) and 45(2) of the ST Act.[32]
2. The respondent says that the purpose of sections 42 and 43 of the Prior Act is to provide a mechanism by which a lot owner can be deprived of the right to use and enjoy common property, which mechanism recognises that the default position should be that a lot owner who benefits should have the burden of the duty to repair and maintain that common property.
3. In response to the applicant's submissions as to the definition of exclusive use by-law, the respondent contends that the terms used in the Prior Act are clear and do not require resort to an assessment of whether or not property 'provides functions which are common to the building as a whole', manages 'energy inputs and outputs' or what 'a reasonable person would... reasonably think is for the benefit of all lot proprietors'.[33]
4. The respondent argues that there are many instances in which common property in a scheme only benefits one lot owner, particularly where there is more than one building or structure on a scheme. That fact does not change its character as common property.[34]
5. The respondent also takes issue with the applicant's contention that the term 'fixtures and fittings' should be taken to mean chattels until they are annexed to land in such a way as to become part of the land and that the windows installed in the building are not 'fixtures and fittings' because they are part of the building itself.[35]
6. The respondent argues that this approach ignores the words used in the exclusive use by-law which specifically includes windows as a fixture for the purposes of the by-law. Further, most, if not all, of the other items that are specifically included as a fixture and fitting for the purpose of the by-law are items that are part of the building itself.[36]
7. Relying on Jarvis, the respondent contends that the word 'fixture' means 'something securely fixed in position' (see Macquarie Dictionary Online) and that a window would clearly meet that definition, which is consistent with the express terms of the exclusive use by-law.[37]
8. It follows, according to the respondent, that the terms of the exclusive use by-law are therefore to the effect that items that are 'part of the building itself' are 'fixtures and fittings' for its purposes. Accordingly, if the applicant's submissions were accepted there would be nothing for the relevant part of the exclusive use by-law to do. If it was intended that the exclusive use by-law not apply to structural elements, the by-law would have said so.[38]
9. With respect to the applicant's submissions that only common property that is 'decorative' in nature is exclusive use property, the respondent says such an approach:

(a) adopts a too literal interpretation and does not take account of the by-laws content and purpose and excludes items expressly referred to in the by-law which would not ordinarily be considered to be decorative (in particular - door locks, plate glass and light fittings); and

(b) creates uncertainty in relation to the rights and obligations of the respondent and lot owners giving rise to inconsistency with the statutory scheme (see Jarvis at [40]).[39]

1. According to the respondent the Tribunal's decision in Jarvis supports its position.[40] In Jarvis the Tribunal considered the word 'decorative' and concluded:[41]

Nothing, in my view, turns on the word 'decorative' in by-law 19.1.1. The adjective 'decorative' means 'serving or tending to decorate'. Ordinarily decorative floor tiles means having the function of decorating, in this case, the balcony.

1. As for the applicant's submission that the word 'window' should be read as a reference to glass subsequently installed, the respondent points to the fact that the by-law separately refers to 'plate glass' and that there would be no need for the term 'plate glass' to be included if 'window' means glass.[42]

1. The Owners of Dolphin Apartments Mandurah Strata Plan 49518 v Poland Superannuation Pty Ltd (Dolphin Apartments),[43] much like the present case, involved a challenge to the validity of a by-law, namely by-law 17(2) which was made pursuant to a management statement. We note however, that by-law 17(2) bears no similarity to by-law 19.2 with which we are concerned. At the time by-law 17(2) was drafted and came into effect, s 42(8) of the Prior Act only permitted by-laws to grant exclusive use and enjoyment through that provision and not otherwise. Lundberg J observed:[44]

... This required certain procedural requirements to be met as stated in s 42(8), which I understand were met in fact in the present circumstances.[45]

1. There being no issue in Dolphin Apartments as to whether the procedural requirements in s 42(8) of the Prior Act had been complied with, Lundberg J had no cause to consider in detail the interaction between by-laws included in a management statement and the operation of s 42(8).
2. However, implicitly his Honour appears to have accepted that exclusive use by-laws included in a management statement must comply with s 42(8) subject to the conclusive presumption in s 42(9) of the Prior Act.[46]
3. Section 42(8) of the Prior Act permitted a by-law to provide for exclusive use and enjoyment in favour of the proprietors of multiple lots in a strata scheme provided each proprietor had given consent in writing. Lundberg J considered that the amendment to the language now found in s 43(1) of the ST Act is intended to clarify the scope of the power, not alter it in a substantive manner.[47] The inclusion of an exclusive use by-law means that the strata company's obligations in s 91(1)(c) of the ST Act to keep the common property in good and serviceable repair fall upon the owner or owners of the lots to whom exclusive or special rights have been conferred.[48]

Lundberg J observed:[49]

The scheme of the Strata Titles Act is such that a lot owner may be deprived of its entitlement to use and enjoy common property only through the mechanism in s 43. Admittedly, the language of the predecessor provision [s 42(8) of the Prior Act] was more emphatic, but the amendments introduced through the Strata Title Amendment Act 2018 (WA) did not have the effect, much less the objective intention, to modify this position.

1. To understand the operation and effect of s 43(1) of the ST Act it is important to appreciate that the right and opportunity of lot owners to use common property in a building which is subject to a strata scheme is 'basal to an understanding of the rights of owners of lots in a strata plan'.[50]
2. Lundberg J[51] went on to identify six uncontentious points arising from the legislative framework that provide context for this understanding.
3. First, the common property of a strata scheme is the part of the parcel of land subdivided by the strata titles scheme that does not form part of a lot in the scheme.
4. Second, the common property within the scheme is owned by all of the lot owners in undivided portions which are determined by the unit entitlements attributed to each lot. The interests of a lot owner in relation to common property is akin to equitable tenants in common.
5. Third, the owner of a lot cannot separately deal with or dispose of their share of the common property.
6. Fourth, the standard by-laws in the ST Act impose restrictions on the conduct of owners in relation to the use of common property in a scheme. This includes the following matters set out in by-law 2 of Schedule 2 of the ST Act:

(a) use and enjoy the common property in such a manner as not unreasonably to interfere with the use and enjoyment of the common property by other owners or occupiers of lots or of their visitors; and

(b) not use the lot or permit it to be used in such manner or for such purpose as causes a nuisance to an occupier of another lot (whether an owner or not) or the family of such an occupier; and

(c) take all reasonable steps to ensure that the owner's or occupier's visitors do not behave in a manner likely to interfere with the peaceful enjoyment of an owner or occupier of another lot or of a person lawfully using common property; and

(d) not obstruct lawful use of common property by any person.

1. Those standard 'conduct by-laws' were inserted by the Strata Titles Amendment Act 2018 (WA) and came into effect on 1 May 2020. Similar by-laws were found in Schedule 1 of the Prior Act, which have now been deleted.
2. Fifth, a strata company has a statutory duty to control and manage the common property for the benefit of all of the owners of the lots. This includes a duty to keep the common property in good and serviceable repair and properly maintain and, if necessary, renew and replace the common property.
3. We note that this duty exists whether the damage or deterioration arises from fair wear and tear, inherent defect or any other cause.
4. Sixth, both before and after the amendments which came into effect on 1 May 2020, s 42(8) of the Prior Act and s 43(1) of the ST Act provided for a curtailment of or an exception to the foregoing regime.
5. The evident purpose of both s 42(8) of the Prior Act and s 43(1) of the ST Act is to permit a strata company to make by-laws allowing certain lot owners within the scheme to have exclusive use, enjoyment and privileges in respect of common property. In so doing, however, the owner or owners to whom exclusive use property is granted must assume the obligation to keep in good and serviceable repair, properly maintain and if necessary, renew and replace that portion of the common property for which they have assumed responsibility.[52]
6. A by-law may be characterised as an exclusive use by-law either because of its express language or because it has that character by reason of the operation and effect of the by-law. In the latter case it may be necessary to undertake a close review of the by-law, to form that view. The necessity for a close review does not translate into a conclusion that the by-law cannot fall within s 43(1) of the ST Act or s 42(8) of the Prior Act.[53]
7. In Dolphin Apartments the by-law in question was framed in the negative:[54]
   1. COMMERCIAL/RETAIL LOT

(1) ...

(2) The proprietor of lot 61 (or lots created by a re-subdivision of lot 61) is not permitted to use any part of the common property or common property facilities that are located on or above the first floor level.

1. The appellant argued that a by-law which merely restricts or overrides the pre-existing right that a lot owner has to use or enjoy common property is insufficient to be characterised as an exclusive use by-law as defined in s 43(1) of the ST Act.[55]
2. Lundberg J held that a by-law framed in a negative manner is not silent as to the conferral of rights or as to the identification of the lots which enjoy the exclusive or special rights, if those rights and those lots can objectively be discerned from the language of the by-law.[56]
3. It would be preferable for by-laws which seek to fall within s 43 to be drafted using the language of the provision as this would achieve greater certainty. However, the proper construction of s 43 does not demand that a by-law faithfully adopt the express language of s 43.[57]
4. His Honour remarked:[58]

In my view, there is no warrant in the scheme of the legislation, nor to be found in its purpose and objects, which justifies an interpretation of the provision [s 43] which favours a technical or pedantic approach to the provision. Given that by-laws are not, I would infer, typically drafted by lawyers or parliamentary draftspersons, I do not consider an overly technical approach to the construction of a provision in the Act (which may or may not be engaged by a particular by-law) is to be preferred. Rather, an approach which permits regard to be had to the substance and effect of the by-law is to be preferred.

1. In applying the principles outlined above Lundberg J concluded that by-law 17, to which we referred earlier, was capable of characterisation as an exclusive use by-law within the meaning of s 43 or its predecessor provision (s 42(8) of the Prior Act). The by-law has the effect that the proprietors of lots 1 - 60 are conferred exclusive rights and privileges in respect of the common property and common property facilities located on or above the first-floor level.[59]
2. In essence by-law 17 by excluding the owner of lot 61 from using the common property and common property facilities located on or above the first-floor level, granted exclusive use of those areas to lots 1 - 60. It follows that the owners of lots 1 - 60, consistent with s 43 (3) of the ST Act and s 42(11)(b) of the Prior Act, assumed the obligation of repair and maintenance of common property on or above the first floor.
3. We now turn to apply the principles laid down in Dolphin Apartments. Before doing so we pause to observe that even though the respondent seeks to attribute responsibility to maintain and repair common property to the applicant in contrast to preserving the entitlement of other lot owners to use and enjoy common property, that does not alter the principles applicable to conferring exclusive use property.
4. In the present case by-law 19.2 should have identified the lot or lots to whom exclusive use property is being conferred. This is because an exclusive use by-law is required to identify the recipient of the grant of exclusive use property.
5. To address this problem, the respondent proposes that words be excised from by-law 19.2. As currently worded by-law 19.2 says:

'[t]he strata company grants to each proprietor who signs a written consent in a form reasonably required by the strata company exclusive use of the exclusive use property relevant to the proprietor's lot'.

1. The respondent contends that by-law 19.2 should be amended to read: '[t]he strata company grants to each proprietor exclusive use of the exclusive use property relevant to the proprietor's lot'.
2. The effect of this amendment is to entirely ignore the need for a lot owner to consent as required by by-law 19.2. This is a material departure from the intent of by-law 19.2 and the terms of s 42(8) of the Prior Act and s 43(5) of the ST Act.
3. The proposed amendment assumes that all lots in the scheme are to be granted exclusive use of exclusive use property not withstanding that by-law 19.2 in its current form required the consent of the proprietor of a lot be obtained.
4. There are two further problems with the respondent's proposed amendment to by-law 19.2.
5. First, as the Court of Appeal observed in Kelly,[60] consistent with the High Court's decision in Westfield,[61]a third party who inspects a management statement on the publicly accessible register cannot be expected to look further for extrinsic material which might establish facts or circumstances existing at the time of the registered dealing. It follows that a third party cannot be expected to divine that words ought to be deleted from by-law 19.2 particularly when the deletion of those words materially changes the meaning of by-law 19 and by doing so entirely ignores the need for consent.
6. This is because any prospective purchaser of a lot in the scheme who accesses the register and reads by-law 19.2 is not only entitled to know which lots are the recipients of a grant of exclusive property but is to expect that by-law 19 only applies to those lots where consent has been provided by the lot owner.
7. Second, as currently drafted by-law 19.2 does not comply with s 42(8) of the Prior Act in that the prior consent of the proprietor of a lot is required to make the by-law conferring exclusive use property. By-law 19.2 presupposes that the consent of the proprietor of a lot is a step that is still to be undertaken. This may explain why by-law 19.2 does not specify the lot or lots receiving a grant of exclusive use property.
8. Section 43(5) of the ST Act is drafted in similar terms.
9. The respondent says that the reference to 'each proprietor who signs a written consent' as required by by-law 19.2 is used in the present tense and refers to the proprietor at the time when the exclusive use by-law was registered.
10. In our view, the respondent's construction of by-law 19.2 is not consistent with the language used. Moreover, as we have already explained, the by-law fails to identify which lots are granted exclusive use property.
11. The respondent says, however, that after 2 years since the registration of the by-laws including by-law 19, s 42(9) of the Prior Act operated to cure any absence of consent (and presumably the absence of a resolution without dissent), they being 'preliminary steps precedent' to the making of an exclusive use by-law under s 42(8).
12. In our view, the failure of by-law 19.2 to identify the lot or lots to which exclusive use property is being conferred cannot be cured by the application of s 42(9). The presumption that a lot owner has consented in accordance with s 42(9) cannot operate in the absence of a specified lot or lots to whom consent can be attributed.
13. A further argument advanced by the respondent purportedly relies on the Tribunal's decision in Jarvis. The respondent contends that all of the lots in the strata scheme are responsible for 'exclusive use property', and as a consequence the failure of by-law 19.2 to specify the lot or lots the subject of a grant of exclusive use property is not fatal. We note that by-laws 17 and 19 in Jarvis are in the same terms as by-law 19 and by-law 2 of the by-laws in this matter.
14. By-law 17 (by-law 2 in this matter) is in the following terms:
    1. Repair and Maintenance of Premises

17.1.1. maintain his premises in a good state of repair and condition;

17.1.2. maintain his premises in a clean condition free from all vermin and insects;

17.1.3 replace in a timely fashion all those paints of his premises which are beyond repair or which become a nuisance or a hazard.

1. The term 'premises' is defined in by-law 1 in both Jarvis and this case to mean 'the proprietor's lot together with fixtures and fittings and that portion of the common property which is exclusive use property'.
2. In Jarvis the strata plan together with a management statement which included by-law 1, 17 and 19 was registered on 30 March 2009. Mrs Jarvis purchased lot 1 on 12 May 2021. The dispute between Mrs Jarvis and the strata company concerned who was responsible for the repair and maintenance of the tiles on the balcony appurtenant to her lot.
3. The Tribunal's reasons confirm that both parties agreed that the balcony in question is common property.[62]
4. As we noted earlier the respondent advances the following propositions relying on Jarvis:

(1) the lot owner had at all relevant times exclusive use of the relevant common property;

(2) a literal interpretation requiring the written consent of each lot owner from time to time would be inconsistent with the statutory context, in particular s 42(8) of the Prior Act; and

(3) two years have passed since the registration of the exclusive use by-law such that s 42(9) applies and the strata company is taken to have granted exclusive use of the relevant common property.

1. Mrs Jarvis' position was that she had never consented to a grant of exclusive use property but that she would be bound by any consent provided by a previous owner. We agree that because of s 42(10) of the Prior Act written consent is not required each time there is a change of owner.
2. In the event the interpretation of Jarvis advanced by the respondent amounts to the proposition that because the definition of 'premises' in by-law 1 includes exclusive use property, by-law 17 (by-law 2 in this matter) requires that the proprietor of a lot is responsible for the repair and maintenance of the exclusive use property without a grant of exclusive use property in accordance with s 42(8) of the Prior Act or s 43(5) of the ST Act, we respectfully disagree.
3. As the Court of Appeal in Kelly acknowledged a management statement is to be construed objectively by reference to what a reasonable person would understand the language of the instrument to mean. It is also to be construed in the context of the registered strata plan having regard to the relevant statutory context.
4. Section 10 of the ST Act (consistent with the definition in s 3(1) of the Prior Act) relevantly provides that 'common property' means:

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

...

1. In accordance with s 13(5)(c) of the ST Act and s 17(1) of the Prior Act, common property is held by the proprietors of lots in the strata title scheme as tenants in common in shares proportional to the unit entitlements of their respective lots.
2. We can find nothing in the ST Act, the Prior Act or the by-laws that supports the respondent's construction that because a lot owner as a matter of fact is the only one with access to a portion of common property, as appears to be the case in Jarvis, that without more amounts to a grant of 'exclusive use property'. Legislative purpose is to be ascertained from what the legislation says rather than any assumption about the desired or desirable reach or operation of the relevant provisions.[63]
3. The term 'exclusive use property' is defined in by-law 19.1. Having regard to the ST Act and similar provisions in the Prior Act and the by-laws considered as a whole, a lot owner only assumes responsibility for exclusive use property upon it being granted to the lot owner or the lot owners predecessor in title in accordance with a management statement, s 42(8) of the Prior Act or s 43(5) of the ST Act.
4. Putting to one side our views as to the validity of by-law 19.2, we have concluded that the correct construction of by-law 2 in this matter is that only a proprietor of a lot who has received a grant of exclusive property in accordance with by-law 19.2 has an obligation to maintain and repair the 'exclusive use property' the subject of the grant.
5. Absent reference to the definition of 'exclusive use property' in by-law 19.1, the definition of 'premises' in by-law 1 is ambiguous. It simply says, 'that portion of the common property which is exclusive use property'.
6. The respondent's construction involves relying on the definition of 'exclusive use property' in by-law 19.1 to give effect to the words 'that portion of the common property which is exclusive use property' in the definition of 'premises'. In our view, the problem with this construction of by-law 2 is that it entirely ignores the fact that by-law 19.2 purports to require that a proprietor of a lot only becomes responsible to repair and maintain 'exclusive use property' upon being the recipient of a grant of exclusive use property.
7. The respondent's interpretation of Jarvis does not assist us. We have concluded that neither the present nor former proprietors of lot 71 were ever the subject of a grant of exclusive use property.
8. In light of the conclusion we have reached in relation to whether there was a grant of exclusive use property in relation to lot 71, strictly speaking it is not necessary to consider the parties' submissions as to the operation of by-law 19.1.1 and in particular the meaning of the terms used therein. However, in light of the parties' submissions regarding the application of exclusive use by-laws to the structural aspects of the building we make the following observations.
9. In Dolphin Apartments[64] the appellant successfully challenged the Tribunal's order that the owner of lot 61 is not required to contribute levies to repair and maintain the common property (and common property facilities) on the first floor, given the terms of by-law 18(1) which provides:

'[t]he proprietor of lot 61 (or lots created by re-subdivision of lot 61) shall be exempt from contributing to any costs associated with the operation, maintenance, repair, replacement and cleaning of the lifts, the swimming pool and gymnasium located on the first floor'.

1. The Tribunal also made an order that the owner of lot 61 is not required to contribute levies to repair and maintain or renew and replace the common property on the second and third floors of the building consistent with by-law 17(2) which says:[65]

'[t]he proprietor of lot 61 (or lots created by a re-subdivision of lot 61) is not permitted to use any part of the common property or common property facilities that are located on or above the first floor level'.

1. The difficulty with these orders as both parties acknowledged in Dolphin Apartments is that they would operate to excuse the owner of lot 61 from contributing to levies in respect of both structural and non-structural components of the building on the first, second and third floors.[66]
2. Lundberg J remarked:[67]

As the respondent explains, by reason of the way in which the boundaries of the lots in the Strata Scheme are defined and by reason of the definition of 'common property' in the Strata Titles Act, the common property on and above the first floor includes both structural and non-structural components of the scheme building. Further, as regards the structural components of the scheme building which form part of the common property (that is, those which are essential to the structural integrity and function of the building as a whole, such as the roof of the building), it is not possible for such components to be exclusively used by any proprietor.

(Emphasis added).

1. Lundberg J also referred to the following extract from the respondent's submissions:[68]

... the only practical use to which such structural common property can be put by any proprietor, is to maintain the structure and integrity of the building as a whole. All of the proprietors therefore use the structural common property in that way continually and no by-law can change that fact.

1. Against that background the parties in Dolphin Apartments accepted that a reasonable person reading by-law 17(2) would not understand the language to preclude the owner of lot 61 from using the structural common property located on or above the first floor of the building. It follows that we consider by-law 17(2) cannot and does not confer exclusive use of, or special privileges over, the structural common property located on or above the first floor of the building to the residential lot owners (lots 1 - 60).[69]
2. As we set out earlier, by-law 19.1.1 in this case relevantly defines 'exclusive use property' to mean every portion of the common property comprising:

19.1.1 decorative fixtures and fittings including but not limited to wall tiles, floor tiles, doors, door handles and locks, light fittings, windows and plate glass and screens which are appurtenant to a proprietors lot;

...

1. The respondent argues that had it been intended that the definition of exclusive use property not include structural elements of the building, the by-law would have said so.[70]
2. We would therefore infer that the inclusion of the word 'decorative' in 19.1.1 is intended to be used in contradiction to the word 'structural'. In our view, it must follow that only common property 'windows and plate glass' that are properly characterised as structural cannot be 'exclusive use property'.
3. A considered analysis of what aspects of a building can be characterised as 'structural' can wait until another day.

1. By-law 19 does not grant to the proprietor of lot 71 exclusive use of the common property appurtenant to that lot.
2. We will hear further from the parties as to the appropriate form of the orders.

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

[1] Applicant's Responsive Submissions, 23 September 2025 at para 7.

[2] Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76.

[3] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [23].

[6] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.

[10] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70].

[13] Section 35(1)(c) of the Prior Act is almost identical to s 91(1)(c) of the ST Act.

[15] Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2017] WASCA 104; (2017) 51 WAR 304 (Byrne No 2).

[16] Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 (Byrne No 1) at [75].

[18] The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207; (2007) 70 NSWLR 344.

[21] Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528 at [39].

[23] Applicant's written submissions at para 24.

[24] Applicant's written submissions at para 25.

[25] Applicant's written submissions at para 26.

[26] Applicant's written submissions at para 28.

[27] Applicant's written submissions at paras 30 and 31.

[28] Jarvis and The Owners of Horizon Apartments on Central Strata Plan 53941 [2023] WASAT 117.

[32] Respondent's Written Submissions, 16 September 2025 at para 19.

[33] Respondent's Written Submissions, 16 September 2025 at para 30.

[34] Respondent's Written Submissions, 16 September 2025 at para 31.

[35] Respondent's Written Submissions, 16 September 2025 at para 41.

[36] Respondent's Written Submissions, 16 September 2025 at para 42.

[37] Respondent's Written Submissions, 16 September 2025 at para 43.

[38] Respondent's Written Submissions, 16 September 2025 at paras 44 - 46.

[39] Respondent's Written Submissions, 16 September 2025 at para 48.

[40] Respondent's Written Submissions, 16 September 2025 at para 50.

[41] Jarvis at [94]; Respondent's Written Submissions, 16 September 2025 at para 50.

[42] Respondent's Written Submissions, 16 September 2025 at para 51.

[43] The Owners of Dolphin Apartments Mandurah Strata Plan 49518 v Poland Superannuation Pty Ltd [2023] WASC 452 (Dolphin Apartments).

[44] Dolphin Apartments at [89].

[45] In the footnote to this paragraph Lundberg J also refers to the conclusive presumption in s 49(2) of the Prior Act.

[46] Even if an exclusive use by-law made in accordance with s 5C of the Prior Act need not comply with s 42(8) it would not, in our view, produce a different outcome. As will become apparent later in these reasons even if the consent of a lot owner is not required, it remains the case that by-law 19.2 fails to identify to which lots exclusive use property is conferred.

[47] Dolphin Apartments at [37].

[48] Dolphin Apartments at [89].

[49] Dolphin Apartments at [76].

[50] Dolphin Apartments at [76].

[51] Dolphin Apartments at [65] - [71].

[52] Dolphin Apartments at [74].

[53] Dolphin Apartments at [78].

[54] Dolphin Apartments at [19].

[55] Dolphin Apartments at [60].

[56] Dolphin Apartments at [79].

[57] Dolphin Apartments at [80].

[58] Dolphin Apartments at [77].

[59] Dolphin Apartments at [81].

[63] Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38 at [85].

[64] Dolphin Apartments at [98].

[65] Dolphin Apartments at [98].

[66] Dolphin Apartments at [98].

[67] Dolphin Apartments at [99].

[68] Dolphin Apartments at [100].

[69] Dolphin Apartments at [101].

[70] Respondent's Written Submissions at para 43.