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[2012] WASAT 227
General information, not legal advice.
State Administrative Tribunal (WA)
2012-11-16
Original judgment source is linked above.
ACT : STRATA TITLES ACT 1985 (WA)
CITATION : STANN and THE OWNERS OF BEAU VISTA STRATA PLAN 12008 [2012] WASAT 227
Breach of duty to properly maintain common property Breach of duty to control common property Benefit of all lot proprietors Strata company's agreement with lot holder to attend to maintenance of common property Consideration to caretaker (lot proprietor) Waiver of levies Whether strata company is under a duty to impose on caretaker a list of duties and require a log book of work attendances to be kept
Strata Titles Act 1985 (WA), s 21F, s 21G, s 21H, s 21I, s 35, s 35(1)(b), s 35(1)(c), s 35(1)(c)(ii), s 36, s 36(4), s 42(2), s 83(1), s 131, s 132(1), Sch 2, Sch 3
Mr Stann claimed that the strata company's arrangement with a lot proprietor in exchange for his attendance to the maintenance of the common property was a breach of the Strata Titles Act 1985 (WA). Mr Stann asserted that the lot proprietor appointed as the caretaker of the common property by the strata company failed to attend to the proper maintenance and control of the common property and that, by his failures, the strata company was in breach of s 35(1)(b) and s 35(1)(c) of the Strata Titles Act 1985. The Tribunal found that the strata company was not in breach of the provisions of the Strata Titles Act 1985, and that the control and maintenance of the common property was undertaken by the caretaker to at least a good standard. The applicant conceded that the benefits conferred on the caretaker were less costly than market rates for those services and were within the strata company's power to confer as they were the subject of a unanimous resolution of the lot proprietors at an annual general meeting held on 7 May 2011 and confirmed by the lot proprietors at a subsequent extraordinary general meeting and annual general meeting.
Clark and The Owners of Waterfront Mews Strata Plan 14082 [2011] WASAT 110
Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181
1 On 16 May 2012, the applicant, Mr Glynn Stann, filed an application in the Tribunal pursuant to s 83(1) of the Strata Titles Act 1985 (WA) (ST Act). The respondent to the application was originally described as Mr Harry Hordyk. It was common cause between the parties that the application was intended to be made against the respondent strata company. Mr Hordyk is, and was at all material times, the secretary of the respondent. Prior to the initial directions hearing in this application, the name of the respondent was corrected to reflect Mr Hordyk as the representative of the respondent.
2 The order sought by the applicant is expressed as follows:
For a List of Duties the Caretaker for 'Owners of Beau Vista' Strata Plan 12008 is obliged to perform ... and for a logbook record to be maintained in exchange for (the Allowance and waiver of his Body Corporate Levy, parking of his caravan and work trailer on common property) currently $3[,]730 [per annum] paid out of Body Corporate funds.
3 The single ground identified in the application is as follows:
On grounds of accountability of the Caretaker for 'Owners of Beau Vista' Strata Plan 12008 ...
4 The applicant provided a short summary of background facts and assertions under the heading provided in the application for the grounds of his application, which shall be referred to below in the factual matrix of the dispute.
5 At the commencement of the hearing of this matter, the Tribunal recorded the applicant's allegations of fact, which he said evidenced the respondent's failure to properly maintain and manage the common property for the benefit of all of the lot proprietors, so as to clarify the facts in dispute. The applicant's position is that there is evidence of systemic failures by the respondent in its duty to properly maintain and manage the common property, caused by the respondent's arrangement with one of the lot proprietors, Mr Steve Throssel, to act as caretaker. The applicant asserts that the work undertaken by Mr Throssel, the instructions by the respondent to Mr Throssel to attend to various maintenance aspects of the common property, and the arrangement that has been made with Mr Throssel for his remuneration for this task, is not authorised by the ST Act. The arrangement between Mr Throssel and the respondent involves payment to Mr Throssel for the costs of materials used by him to maintain the common property, relief from the payment of levies ($300 per quarter, as of 12 April 2012) and the payment of a fee of $230 per month for his time and expertise (totalling $2,760). This arrangement was adopted by a unanimous resolution of the lot proprietors at the annual general meeting (AGM) of the lot proprietors, being the members of the respondent, on 7 May 2011. Further, pursuant to an arrangement of longstanding between the respondent and Mr Throssel, the latter has parked his trailer in a small area of paved common property and his campervan in between the two carports. The applicant asserts that the respondent has failed in its duty to manage the use of the common property, mismanaged the common property and has mismanaged the respondent's funds.
6 To put it shortly, the applicant asserts that Mr Throssel does not discharge his duties as caretaker for the respondent adequately and the remuneration is not warranted. He seeks an order from the Tribunal to compel the respondent to impose on Mr Throssel compliance with the list of duties attached to his application, and that Mr Throssel keep a log book of the time and details of his works for the respondent.
7 The application was listed for initial directions on 24 May 2012, at which time the issues were broadly identified and noted in the orders made on that day as the respondent's:
8 Orders were made for the parties to file short points of claim and response for the mediator. The application was listed for an onsite mediation on 20 June 2012. The mediation took place but was wholly unsuccessful and the matter was listed for hearing on 23 July 2012. The mediator made orders enabling the parties to file documents in support of their positions.
The relevant statutory provisions and interpretation
(b) control and manage the common property for the benefit of all the proprietors;
(c) keep in good and serviceable repair, properly maintain and, where necessary, renew and replace
(i) the common property, including the fittings, fixtures and lifts used in connection with the common property; [and]
(ii) any personal property vested in the strata company,
and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause;
10 In Clark and The Owners of Waterfront Mews Strata Plan 14082 [2011] WASAT 110 (Clark) the Tribunal had occasion to consider the extent of the obligation to 'properly maintain' the common property as provided for in s 35(1)(c) of the ST Act. The Tribunal applied the reasoning of the Western Australian Court of Appeal in Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181 (Drexel London), where her Honour McLure JA (as she was) stated at [232] the following:
When regard is had to the multiple purposes of s 35(1)(c), it is clear the legislature did not intend the strata company to guarantee a continuous outcome or standard. The term 'maintain' is used in the second sense identified by Lord MacDermott in [Galashiels Gas Co Ltd v O'Donnell [1949] UKHL 2; [1949] AC 275] being the process that involves acts of maintenance with the object of continuing the statutory standard, which in this case is that the common property be in good and serviceable repair. (Tribunal emphasis)
11 In applying that reasoning, the Tribunal concluded in Clark at [25] that:
The effect of the above reasoning is that when common property is found to have deteriorated there is then an obligation on the strata company to carry out the necessary maintenance. ...
12 Section 35(1)(c) of the ST Act does not require the respondent to continuously maintain the common property in a particular state at all times. Rather, s 35(1)(c) of the ST Act imposes an obligation on the respondent to attend to proper maintenance, renewal and replacement of the common property when there is damage or deterioration. If damage or deterioration occurs and at that stage proper maintenance is not undertaken by the strata company, it can be said that there is a breach of the obligation to 'properly maintain' the common property for the purposes of s 35(1)(c) of the ST Act by the strata company: see Clark.
13 The obligation to keep common property in 'good service and repair' to the extent that it applies to areas such as the garden, paving, guttering and painting (as opposed to fixtures that need to perform a function such as a gate), it means no more than the standard of service or repair must be 'good'. The Tribunal concludes that, as a matter of interpretation of s 35(1)(c) of the ST Act, the respondent is not obliged to undertake a perpetual maintenance programme so that the common property is, at all times, in a particular state or condition. This permits the respondent to attend to servicing, repairs, replacements and renewals of the common property as part of the respondent's maintenance obligations in response to those instances of damage or deterioration. If, for example, a gate deteriorates to such an extent that it fails to function as a gate, it could be said that it has reached the state where the strata company's obligation to service, repair, replace or renew arises and it is to return the gate to a good functioning and serviceable state. It need not restore it to an asnew condition and it is not obliged to undertake maintenance to prevent deterioration. Although preventative maintenance is prudent, it is not obligatory under s 35(1)(c) of the ST Act.
14 As to the issue of allowing Mr Throssel the right to park his campervan and his trailer on the common property, this raises the obligation imposed on the respondent by s 35(1)(b) of the ST Act, referred to above. Although not an exclusive licence, it is an arrangement that the respondent has power to authorise pursuant to bylaw 1 of Sch 2 of the ST Act. The bylaws for the respondent are those provided for by Sch 2 of the ST Act (s 42(2) of the ST Act). Bylaw 1 of Sch 2 provides:
A proprietor, occupier or other resident of a lot shall not park or stand any motor or other vehicle upon common property except with the written approval of the strata company.
15 The conferral on Mr Throssel of the right to park his campervan and trailer on the common property as designated, is said by the respondent to be a use of the common property for the benefit of all of the lot proprietors because it is part remuneration for Mr Throssel's services to the respondent in maintaining and managing the common property the gardens in particular. As noted, it is an arrangement of longstanding. This aspect of the remuneration was not the subject of the arrangement made at the AGM on 7 May 2011.
16 As to the financial arrangements made with Mr Throssel for his services, the respondent is obliged, by s 36 of the ST Act, to establish a fund from which it is to pay administrative expenses and the costs of control and management of the common property. Section 36(4) of the ST Act provides that the lot proprietor levies are due and payable in accordance with the terms of the decision to make the levy as passed at a general meeting (unless the council of owners is specifically empowered to determine the terms). Where the members of the respondent agree by unanimous resolution to appoint a lot proprietor as its agent to attend to the work necessary to discharge the obligations to control and properly maintain the common property as directed by the respondent, the appointment is not unlawful. Nor is it unlawful if the respondent, after unanimous resolution of the members in general meeting, were to waive the levies of that lot proprietor as consideration for the services provided by that lot proprietor.
17 The question in this case is whether the benefits conferred by the respondent on Mr Throssel are justified, and whether the respondent has received value. The applicant seeks to persuade the Tribunal that the respondent is not authorised to make the arrangement with Mr Throssel because the payment is in excess of the value Mr Throssel provides to the respondent and to all of the lot proprietors. To demonstrate the lack of value, at the hearing, the applicant identified a number of incidents that evidenced that the respondent was in breach of its duty to control and properly maintain the common property by reason of the conduct of Mr Throssel.
18 It is for this reason that the applicant seeks an order that the Tribunal compel the respondent to impose on Mr Throssel the obligation to undertake the work referred to in the applicant's list of caretaker duties and to keep an accurate log book of his work.
The alleged breaches of s 35(1)(b) and s 35(1)(c) of the ST Act by the respondent
19 As stated, at the commencement of the hearing the applicant identified a number of examples of the respondent's alleged failure to control and properly maintain the common property.
Issue 1 The respondent, via Mr Throssel, has failed to move all of the lot proprietors' general and recycling rubbish bins to the verge on a municipal bin collection day
20 The applicant asserted, and gave evidence, that he observed Mr Throssel regularly put the general and recycling rubbish bins on the verge for certain lot proprietors (or their tenants), but refused to undertake this task for the applicant and another person who resides at Unit 2. The lot proprietor (or occupier) of Unit 2 did not give evidence in this proceeding.
21 The minutes of the extraordinary general meeting (EGM) of the respondent on 22 October 2011 record that the applicant asserted that the draft minutes of the AGM on 7 May 2011:
omitted to state that if the bins were placed along the fence Steve Throssel[,] as caretaker[,] would put them out for collection by council. It is confirmed that this was mentioned at the AGM but not confirmed.
22 The applicant's motion at the EGM for an amendment to the draft minutes of the AGM on 7 May 2012 was not accepted. At the EGM on 22 October 2011, the applicant moved that the respondent adopt a list of caretaker duties drafted by the applicant (attached to the application), the first item of which concerns the proposed duty on the caretaker (Mr Throssel) to position all bins for collection by the municipal council service provider. The minutes of that EGM record that that motion was not seconded and not carried. This matter was raised again by the applicant at an annual general meeting on 28 April 2012 under the heading 'general business'. The minutes of that meeting record the response as a 'Ruling', but not how the ruling was made or by whom. The 'Ruling' is recorded in the minutes as:
Attending to rubbish and recycling bins is not Steve's role. If he, Steve, wants to help someone that is his choice. (Glynn acquiesced and cannot bring this up again).
23 Mr Throssel gave evidence at the hearing of the application and stated that putting out lot proprietors' bins is not his 'problem' because he is not obliged to attend to the private bins of lot proprietors or occupiers. He gave evidence that moving the bins onto the verge for collection of general and recycling rubbish is not a task he had been directed by the respondent to undertake. He says that he volunteers to undertake this task for certain lot proprietors or occupiers and he does not intend to volunteer his services to the applicant.
24 There is no evidence that the general and recycling rubbish bins are common property, or that they comprise personal property that is vested in the respondent for the purposes of s 35(1)(c)(ii) of the ST Act. The Tribunal finds that the bins are not common property and are not items of personal property vested in the respondent. As such, the respondent has no power to direct Mr Throssel to move the same. There is no evidence that the respondent has paid Mr Throssel to undertake this work for all, or any, lot proprietors or occupiers. The Tribunal finds that, whilst the issue was raised at the AGM on 7 May 2011, it was not the subject of any agreement or resolution that it formed part of Mr Throssel's tasks for the respondent, and for which he was to be remunerated by the respondent.
25 That such a matter was not approved by the lot proprietors is consistent with the fact that the bins are not common property and are not owned by the respondent, and the presentation of the same for collection by the municipal council is the responsibility of the individual lot proprietors (the municipal council rate payers) and/or the occupants of their units.
26 The applicant's allegation that the failure of Mr Throssel to present the applicant's bins for collection is misconceived and does not amount to a breach of s 35(1)(b) or s 35(1)(c) of the ST Act.
27 Should Mr Throssel volunteer his services or time, or be paid for his services or time by other lot proprietors or occupiers of the units to undertake this task, that is a matter for him.
Issue 2 Gutter leaks above Unit 6 facing the road; leaks onto the timber joist below; the gutter is part of the common property
28 The precise nature of the alleged leak is not identified. There are no photographs of the alleged leak. There is no evidence that the leak allows water to leak onto a joist, or that it has caused any damage or deterioration to any joists or any other part of the common property.
29 At the EGM on 22 October 2011, it was moved and resolved by the lot proprietors, being the members of the respondent, that the following process would be adopted so that the respondent was able to delegate specific repair and maintenance tasks to Mr Throssel and other trades, as and when the need arose:
All issues by occupiers that need attention to be addressed to the secretary in writing as they come up. The secretary is then to contact the relevant unit owner advising of the issue.
30 The respondent, in its submissions (by letter dated 26 June 2012), states:
It is Beau Vista policy that if certain maintenance work is required that is noted by the owners, they are to advise the secretary in writing, who will instruct the caretaker to attend, if it is within his realm of expertise, or call in professional trades/services. Work is done on a priority of safety, inconvenience to occupiers and affordability basis.
31 The Tribunal finds that this is the process that is to be complied with by occupiers and/or lot proprietors, so as to alert the respondent that maintenance to the common property is possibly required. The respondent is then to determine whether any, and what, work is required for the proper maintenance of the common property. The respondent is not obliged to undertake work without assessing whether the same is warranted.
32 There is no evidence that the applicant ever alerted the respondent in writing, or at all, about the alleged leaking gutter above Unit 6 until this proceeding was commenced. The Tribunal is not satisfied that there is, in fact, any leak to the gutter above Unit 6. The fact that the applicant asserts that there is a leak is not sufficient to establish the same.
33 If there is a leak, as alleged, the Tribunal is not satisfied that the respondent is in breach of its duty to undertake proper maintenance of the common property in those circumstances. The applicant's letter to the Tribunal, dated 30 October 2012, asserts that the alleged leak remains unrepaired. This tends to establish that the respondent has failed to repair the leak (if, in fact, it exists). The applicant was not directed, or permitted, by the Tribunal to make any further submissions following the hearing on 23 July 2012. The respondent has not had the opportunity to address the Tribunal on what, if any, action the respondent has taken, or proposes to take, in respect of the alleged leak. There is no evidence to establish that the respondent has failed to attend to a leak that warrants remedial action. The applicant must establish a failure to repair, replace or renew the common property by the respondent for the Tribunal to be satisfied that the respondent has breached s 35(1)(c) of the ST Act.
34 The Tribunal finds that, on the evidence as a whole, including the photographs taken by the parties and the minuted statements of the lot proprietors (other than the applicant), the common property is well maintained by the respondent through the services of Mr Throssel and other trades called for from time to time by the respondent (Exhibit 2; AGM 7 May 2011; EGM minutes 22 October 2011). The Tribunal infers from the general good state of repair of the common property as depicted in those photographs, that, if there is a leak as alleged, the respondent will take steps to repair, replace or renew the gutter as is necessary and within a reasonable period of time. The Tribunal considers that the scheduling and nature of the work to be undertaken is a matter for the respondent to consider and decide upon. If, for example, the respondent were to decide that the repairs could justifiably wait until the weather is better for such work to be undertaken, that the work can await the conclusion of the dry months of the year, or that a particular method of repair is adequate, that is a matter for the respondent. If, after being notified of damage or deterioration of the common property, the respondent took no action to investigate the assertion, failed to formulate any plan to repair the common property, or the facts indicated that the respondent did not intend to take any action when action was warranted, then it could be said that the respondent had breached the duty imposed by s 35(1)(c) of the ST Act. In the case of the alleged leak to the gutter above Unit 6, the Tribunal is not satisfied of that fact, in any event. Further, the Tribunal finds that the applicant's evidence is not reliable and that his evidence and his allegations are affected by personal animosity towards Mr Throssel concerning the leak and general need for maintenance (refer below).
Issue 3 Painting of roller doors; the applicant seeks 'reimbursment' of the value of his labour and the cost of the consumables ($2,800)
35 The Tribunal is satisfied that the roller doors fitted to each garage and the boatshed comprise the common property. Each lot incorporates a specific garage. In the applicant's case, as the proprietor of Unit 8, his lot also incorporates the boatshed. The applicant's garage is larger than the garages of other lots. Between the boatshed and the garage, several roller doors abound the applicant's lot parts.
36 The respondent has asserted that the garage doors form part of each individual lot. The Tribunal finds that this statement is incorrect. The strata scheme was registered pursuant to the Strata Titles Act 1966 (WA) (repealed Act) in 1984. Originally, the lot boundaries comprised the centre of the wall, floor and ceiling of a lot where the wall, floor and/or ceiling joined to either another lot or the common property. The repealed Act did not include a reference to a window or a door (unlike the ST Act). The repealed Act was repealed by s 131 of the ST Act. Section 132(1) of the ST Act provides that 'Schedule 3 has effect' in place of the repealed Act in relation to preexisting strata schemes. Schedule 3 concerns transitional and saving provisions in respect of strata schemes created pursuant to the repealed Act. The effect of cl 3(1)(a)(i) of Sch 3 of the ST Act is to reset the lot boundaries created, pursuant to the repealed Act, from the centre of a wall, floor and/or ceiling that was a shared wall with another lot or the common property, to the inner surface of such a wall, floor and/or ceiling. There is no registered resolution to bring this strata scheme into line with one created after 1996 (s 21F, s 21G, s 21H and s 21I of the ST Act). It appears to the Tribunal, therefore, that all of the garage doors of each lot, save for the internal surface of each door, is common property.
37 The applicant asserts that, in the past, the respondent had attended to the painting of the roller doors. At the EGM on 22 October 2011, the issue of painting the roller doors was placed upon the agenda for consideration. The minutes record that the respondent, through the efforts of Mr Throssel, had obtained three quotes and the prices ranged from $6,750, plus GST, to $11,131.19, plus GST, for the painting and preparation of all of the garage doors and the carports. The carport is part of the common property.
38 At that meeting, the applicant tabled his own quote of $4,840, plus GST, although there is no evidence that the applicant is a registered building service provider (painter). The minutes of the EGM on 22 October 2011 record the following:
These quotes are discussed. It was noted that the roller door painting was really only to extend the life of the [roller] door somewhat. It will be more cost effective to replace the [roller] doors which would be each owner's responsibility anyway. The lintels need rust treatment and repainting too.
39 It is clear from this statement that the respondent, and most of the lot proprietors at that meeting, held the view (incorrectly) that the garage roller doors were part of each lot (and by implication that the boatshed garage roller door was part of the applicant's lot). The roller doors being common property, it follows from s 35(1)(c) of the ST Act that the respondent was, and is, obliged to maintain the same. It is also apparent from the statement in the minutes (which was not challenged by the applicant in any way) that the roller doors are nearing the full term of their useful life and will, at some stage, require replacement.
40 Upon the premise that the roller doors comprise the property of each lot proprietor, the following was resolved:
Steve Throssel is willing to attend to the rust spots on the carport roof cover and beams [etcetera] and do the repainting of the roller doors with costs reimbursement of paint and consumables. As there is[,] at present[,] an unworkable situation between Steve Throssel and Glynn Stann* the offer applies at this stage only to Units 1 to 7. Unit owners are to contact Steve Throssel [regarding] painting of the roller doors [etcetera]. He will need keys for access to each garage. Glynn Stann will do the painting to his own [roller] doors and match the paint colour.
41 The Tribunal concludes that, upon the basis of the information contained in the minutes, referred to above, the lot proprietors at the EGM agreed, albeit in the belief that the roller doors were part of the individual lots, that they would each be responsible for the painting of the outer face of the roller doors abounding their individual lots. Mr Throssel, in the case of Units 1 7, was willing to paint the face of the roller doors bounding those lots, provided that each lot proprietor reimbursed him for the consumables required for that task. Mr Throssel was not prepared to offer his services to the applicant, and the minutes record that the applicant proposed to attend to painting the roller doors bounding his lot in a colour to match all other doors. There was no objection or dissent recorded in the minutes by the applicant and no qualification made by him. On the contrary, the minutes record his agreement.
42 There is no suggestion that the respondent intended to, or did, reimburse or pay for the cost of the consumables involved in attending to preparation and painting of the roller doors for any lot proprietors. There is no evidence that the respondent intended to, or did, pay Mr Throssel to undertake this task in respect of any one or more roller doors. Whether the individual lot owners paid Mr Throssel for his services, or whether he simply volunteered his labour, is unclear. That was a matter for Mr Throssel and the individual lot proprietors to negotiate between themselves. Given the resolutions passed at the EGM and referred to above, the applicant's claim that the respondent reimburse him for his labour and the cost of consumables involved in painting of all roller doors bounding his lot, is without foundation. The fact that Mr Throssel did not paint the applicant's roller doors is not an instance of the respondent's breach of s 35(1)(c) of the ST Act. The respondent did take action to maintain the roller doors by resolving in general meeting that the lot proprietors would attend to the work themselves instead of paying a commercial rate for the work to be done by a tradesperson.
43 There was a very good reason why Mr Throssel would not paint the applicant's roller doors. As at 22 October 2011, proceedings were on foot between the applicant and Mr Throssel in the '[L]ocal [C]ourt' concerning a verbal altercation between the two. It is not clear whether there was an order on foot but relations between Mr Throssel and the applicant were poor.
Issue 4 Four shoes on carport downpipes and two shoes on garage downpipes to be repaired
44 The applicant gave evidence that the bottom length of the downpipes and the shoes to the downpipes had been replaced with chain. Mr Throssel gave evidence that he cut the downpipes and replaced the bottom sections of the downpipes with chain (which chain directed water down to the ground and away from the posts of the carport and the footings of the garage wall). Mr Throssel gave evidence that he did this on account of already having replaced the lower sections of certain downpipes once because they had been crushed, probably by cars reversing into the downpipes.
45 The Tribunal did not hear any evidence that such a method or replacement was unacceptable. There was no evidence that this was not an appropriate means of directing the water from the roof and the gutters to the ground and away from the posts, wall and footings. The applicant did not advance any evidence that this method of repair or replacement constituted inadequate maintenance of the common property.
46 The Tribunal concludes that the replacement of the bottom section of the downpipes and shoes with chain does not amount to a breach of s 35(1)(c) of the ST Act.
47 The applicant gave evidence that, when he attended on an unidentified occasion to use the clothesline, it was broken. The applicant gave evidence that he made a decision to fix the clothesline himself because, he said, the caretaker was away and it would take too long. The Tribunal does not consider this an example of the failure of the respondent to properly maintain the common property. There is no evidence that the applicant ever brought this to the respondent's attention, or that the respondent was aware of the broken clothesline. There is no evidence that the applicant made enquiries to ascertain whether the respondent, through Mr Throssel or by some other means, was aware that the clothesline was broken. It appears that the applicant did not give the respondent, through Mr Throssel or otherwise, the opportunity to repair the clothesline. It cannot be said, in these circumstances, that the respondent was in breach of s 35(1)(c) of the ST Act.
48 The applicant gave evidence that he observed a fluorescent globe at the entrance to Unit 3 was not operating. He gave evidence that the respondent would not fix or replace the globe, and that instead he replaced the globe. The applicant stated that he was 'fed up' with waiting for it to be repaired, and that as he was an electrical contractor he was able to replace the globe. The applicant asserted that the failure to replace the globe at the entrance to Unit 3 was dangerous because the steps near Unit 3 were not illuminated. There is no evidence that the applicant raised the need for a replacement globe with the respondent. There was no evidence as to what period of time the applicant waited to see if the respondent would replace the globe. There was no evidence that the respondent was not in the process of replacing the globe. The applicant gave no evidence of the time that elapsed between when he first noticed that the globe needed replacing to when he replaced the globe. His statement that he was 'fed up' waiting for the globe to be replaced does not assist the Tribunal in assessing whether the respondent had failed to discharge its statutory obligation to properly maintain the common property pursuant to s 35(1)(c) of the ST Act. On the evidence, the Tribunal is not satisfied that the respondent was in breach of s 35(1)(c) of the ST Act.
Issue 7 The front wall along the boundary of the strata development to the council land is damaged and unsightly and needs patching and painting
49 The applicant gave evidence that the front wall had been damaged by whippersnipping of the lawn near the wall. In his letter to the Tribunal, dated 30 October 2012 (which was not filed pursuant to an order, was not authorised by the Tribunal and was received by the Tribunal well after the conclusion of the hearing), the applicant provided photographs of the front wall. It is clear to the Tribunal that the paint to the front wall is delaminating and there is evidence of moisture ingress to that wall. The ingress of water to that wall provides an explanation for the delamination of the paint. The water ingress may be caused by either water being sprayed onto the wall from reticulation or where earth and/or mulch is built up against one side of the wall. The wall does not appear to be a double brick and cavity wall. This is a common occurrence in garden walls.
50 The Tribunal also observes chips to a section of the wall but the cause is unidentified. The applicant says that, as at 30 October 2012, the wall remains in the state complained of. Photograph 4A, attached to the letter dated 30 October 2012, shows the entire length of the wall, and from that photograph the patching and painting of the wall and any damage by whippersnipping is not immediately evident. The closer range photograph indicates a need for maintenance in the one photograph. Again, there is no evidence that the respondent has not planned to attend to this maintenance. It is common for repainting of garden walls to take place after a period of dry weather, so that the moisture in the wall is eradicated. The evidence does not establish that the respondent will not attend to the maintenance of the garden wall in a timely manner. The fact that the work is not attended to by the respondent at the pace that the applicant considers is appropriate, is, of itself, not relevant. There is no evidence that the respondent does not intend to repair and repaint sections of the wall. This is to be contrasted to the position in Clark where the common property pool had been closed by the strata company on account of the cost of maintenance of the same.
51 The applicant asserted that the conduit saddles on all external walls were rusted and required treating and repainting. The applicant did not produce any photographs of the alleged rusted conduit saddles. The applicant did produce one photograph of a downpipe saddle or strap that had rusted through and had been broken. That downpipe may be the same downpipe that was photographed by the applicant showing the bottom section of the downpipe that had been crushed, which may have caused the downpipe saddle to break and then rust. There is no evidence that any conduit saddles are rusted, save for the applicant's assertion. For the reasons referred to, the Tribunal does not accept the applicant's assertions as proof of the same, and the Tribunal concludes that this complaint is not an example of the respondent's failure to maintain the common property and does not evidence a breach of s 35(1)(c) of the ST Act.
52 The applicant asserted that a creeper, grown on the common property, had not been pruned, or adequately pruned, and was, or would, block 'drainage'. The Tribunal understands this to mean that the applicant asserted that a creeper had grown in a fashion that would stop rain and stormwater flowing into or along the gutters attached to the external walls of the units, and down the downpipes. There is no evidence at all in support of this allegation. There is no photograph of the creeper and there is no reference in the minutes to the incident.
53 There is a record in the minutes of the AGM on 7 May 2011 and the EGM on 22 October 2011 concerning a blocked drain issue. It appears from these minutes that the balcony to Unit 8 (which balcony comprises common property) has a drain hole which discharges onto the porch at the front of Unit 4 (also common property), beneath Unit 8. The drain hole had been blocked to prevent water being discharged onto the porch of Unit 4 and onto the tenant's outdoor furniture.
54 There was agreement at the hearing that Mr Throssel had blocked that drain hole following complaints from the tenant of Unit 4 about dirty water being discharged onto his patio furniture positioned on the portch from the drain hole. The water flow was said to have been caused by the applicant pouring water into the drain hole. The details of that allegation were not fully ventilated at the hearing. The minutes of the AGM on 7 May 2011, record that an alternative 'noninvasive draining' method was suggested to overcome the problem. The exact nature of such a drain was not the subject of any evidence at the hearing.
55 The minutes of the EGM on 22 October 2011, note that the applicant initiated a '[L]ocal [C]ourt summons' against Mr Throssel after a verbal altercation resulting from 'the new balcony drain for Unit 8 being drilled through and destroyed' by the applicant. That matter was expected to have been heard (according to the minutes of the EGM) on 4 November 2011. The Tribunal did not receive any further evidence concerning that matter. The relationship between Mr Throssel and the applicant is poor and Mr Throssel confirmed the same.
56 The lot proprietor of Unit 4 ultimately fitted a gutter to the drain hole in the centre of the balcony to Unit 8, so as to prevent water discharging onto the furniture situated on the porch in front of Unit 4. This is the only reference in the evidence and the submissions of the parties concerning a drain.
57 The Tribunal is satisfied that there is no evidence to support the allegation of a creeper failing to be pruned, or pruned adequately, so as to prevent rain or stormwater being collected in the gutter and discharged into the downpipes.
58 For this reason, the Tribunal is satisfied that this item does not support the allegation that the respondent failed to discharge its obligation to maintain the common property and is in breach of s 35(1)(c) of the ST Act.
Issue 10 Carport roof above Unit 8 to be cleaned of roof debris
59 The carports form part of the common property in this strata scheme. The Certificate of Title identifies that each carport is for the exclusive use of the lot noted. There is no evidence that the gutter to the carport for the exclusive use of Unit 8 is prevented from functioning by reason of an accumulation of leaf debris, save for the applicant's assertion.
60 The Tribunal finds that there is no leaf debris to the gutter and, further, if there is any leaf debris in the gutter, there is no evidence of how long it has been allowed to accumulate, the lapse of time since the last gutter clean and the reasonable need for the next clean of the gutters. Merely because a gutter may contain leaf material, does not mean that it requires immediate attention. The cleaning of gutters is a regular seasonal task in good or proper maintenance of property, and there is no evidence that there was no program in place to remove the periodic accumulation of leaf material from the gutters. For the reasons stated, the obligation imposed by s 35(1)(c) of the ST Act does not require the respondent to keep the common property in a particular state at all times. The respondent is not required to keep the gutters leaffree at all times. The Tribunal finds that the evidence does not support a conclusion that the respondent is in breach of s 35(1)(c) of the ST Act.
61 The applicant asserted that the top of the pergola timbers above Unit 4 required repainting. The Tribunal is satisfied, for the reasons already discussed, that this area is common property. One of the applicant's photographs (Exhibit 1) depicts the beams of a pergola. The relevant photograph does not depict that the timbers are damaged or have deteriorated. The photograph does depict what may be discolouration in the paintwork, in parts thereof, but it is not sufficient to establish that the timbers require repainting or any immediate attention. However, the Tribunal is not satisfied that the photograph depicts the relevant timber.
62 This matter was raised at the AGM on 28 April 2012. Under the heading 'general business', the following is noted in the minutes of that AGM:
Glynn Stann notes that the top edge of the timber pergola of Unit 4 requires painting to preserve it from the weather. Mike Neagle (owner) will look at this with Glynn after meeting.
63 By letter dated 30 October 2012, the applicant wrote to the Tribunal and asserted that 'the paint on top of the pergolas above Units 1, 2 and 3 were still perished (see photograph attached)'. These appear to be entirely different timbers than the timber referred to at the commencement of the hearing (that is, the timbers above Unit 4). There is no reference in the applicant's letter to the Tribunal, dated 30 October 2012, to the timbers above Unit 4. Given the minutes of the AGM on 28 April 2012 and the lack of a reference to the timbers above Unit 4 specifically in the applicant's photographic evidence or his letter dated 30 October 2012, the Tribunal infers that the respondent has attended to the maintenance of the same. It appears that the issue was attended to in a timely manner after the AGM on 28 April 2012. On the basis of that inference, the Tribunal finds that the timbers above Unit 4 have been properly maintained and the respondent has not breached s 35(1)(c) of the ST Act.
Issue 12 Cobwebs on front wall and security fluorescent light
64 There is no photograph of this issue before the Tribunal. There is no evidence that cobwebs on the front wall or security fluorescent light will cause any damage to, or deterioration of, the common property, and the submission that cobwebs on the common property constitute a breach of s 35(1)(c) of the ST Act is misconceived. There is no evidence that this matter has not been already incorporated into the respondent's general maintenance schedule; nor is there any evidence as to how long the cobwebs were in place. There is no evidence to support this issue.
65 The Tribunal finds that this complaint does not exist and, further, it is not a matter that evidences a failure by the respondent to maintain the common property. There is no evidence on this issue to support a conclusion that the respondent is in breach of s 35(1)(c) of the ST Act.
66 The applicant asserts that the moss on the driveway is a safety hazard and is required to be removed. There is evidence before the Tribunal that Mr Throssel regularly removes the moss from the common property walkways and driveways as and when required and that he performs this task regularly.
67 It is not for the applicant to dictate when and how this task is to be undertaken. The Tribunal is satisfied that the respondent has implemented, and does perform, a regular maintenance program for cleaning moss and debris from the walkways and driveways of the common property (respondent's written submission dated 28 June 2012).
Issue 14 Hibiscus shrubs in garden beds outside Unit 5 to be trimmed to clear path
68 There is no evidence of any protrusion from a hibiscus plant, or any other plant, which requires the path outside Unit 5 to be cleared. The evidence suggests that the respondent implements and performs a regular gardening and pruning schedule that is undertaken by Mr Throssel. This incident does not disclose a failure by the respondent to maintain the common property and does not constitute a breach of s 35(1)(c) of the ST Act.
Issue 15 Canvas awning at the rear of Unit 5 on the balcony to be removed and replaced with grey corporate colour
69 The applicant's recent letter indicates that this has not yet been attended to. The photographs taken by the applicant and produced at the hearing on 23 July 2012 do not identify the new corporate colour or the necessity for replacement of the awning. This may be an aspect of the quality of the photographs and the number of photographs that the applicant has elected to put before the Tribunal. It is not entirely clear whether this awning comprises part of the common property or extends into the common property, which is noted as being for the use of Unit 5 (Mr Throssel's unit). It certainly seems to be attached to the underside of the ceiling of a small balcony or landing area adjacent to Unit 5, and extends over and just above a brick wall outside the windows of Unit 5. The awning is not torn or broken. If the awning formed part of the common property and was torn or broken, then it could be said that the respondent was obliged to replace the same pursuant to the obligation imposed by s 35(1)(c) of the ST Act.
70 The background circumstances concerning an alteration to the colour of any awnings attached to the lots, or forming part of the common property, is not before the Tribunal. It is the applicant who asserts that all awnings must adhere to a new corporate colour but there is no evidence of any resolution to that effect or that all other awnings have been replaced or when that resolution was to be finally complied with. As the awning is not torn or broken, it seems to the Tribunal that this matter does not concern the maintenance or control of the common property and a breach of s 35(1)(b) or s 35(1)(c) of the ST Act. This allegation concerns, perhaps, the enforcement of a resolution or changes to the appearance of the lots, which is not the subject of the applicant's application.
71 The applicant produced a number of photographs showing alleged illegal parking (Exhibit 1). In the case of a red ute, it is asserted that the ute was illegally parked in front of the applicant's boatshed on 4 May 2012, and there are a number of photographs concerning that vehicle. There is also a photograph of an SUV parked in an unspecified area that appears to be common property. In addition, there is another photograph of a small blue hatchback vehicle, which appears to be parked on common property. Mr Throssel stated that there had been incidental occurrences where tenants or occupiers had parked their cars on common property or in a carport or garage area that was intended for another or comprised the lot of another. Mr Throssel gave evidence that he had observed the applicant's vehicle parked in an area belonging to another lot proprietor on occasion. The Tribunal accepts Mr Throssel's evidence that he uses cones to prevent 'illegal' use of carports, garages and common property for parking and when he allows for easy parking for a tenant's nurse who attends on a regular basis. There appears to be little or no visitor car parking provided in this strata scheme. The Tribunal finds that Mr Throssel attends to any instances of 'illegal' parking, whilst at the same time tries to accommodate lot proprietors and tenants who require the assistance of a nurse or doctor to tend to them. The Tribunal finds that Mr Throssel does oversee the car parking issues, but that instances of 'illegal' parking are only for short periods and cannot always be prevented.
72 The Tribunal finds that this issue does not establish a breach of s 35(1)(b) of the ST Act, or any breach at all.
73 Two of the applicant's photographs depict a trailer and a campervan, each parked on common property. The applicant says that the 'illegal' parking of the aforesaid vehicles is caused by the respondent permitting Mr Throssel to park his campervan between the two carports, and the trailer on the common property. There is no basis for this allegation. Mr Throssel parks his campervan in a small area between the two carports. That area is not designated for parking of any kind. There is no evidence to establish that the vehicles depicted would have parked in the area between the two carports if Mr Throssel's campervan had not been not parked there. The same can be said in respect of the area where Mr Throssel parks his trailer.
74 Mr Throssel gave evidence that the small paved area was one created by him many years ago when he was asked by the respondent to cut down a tree and pave the area.
75 Mr Throssel gave evidence that his use of common property was of longstanding. He stated that he had owned Unit 5 for some 19 years. He stated that he purchased his new campervan in 1995, and he requested the respondent's permission to park his campervan between the two carports in exchange for his services in maintaining the gardens on the common property. Mr Throssel said that that was agreed to by the respondent. None of the current lot proprietors were proprietors at that stage. The respondent accepts that the respondent had made this agreement with Mr Throssel many years earlier and that it benefited the proprietors, as the gardens were maintained for no monetary outlay for a very long period of time.
76 As to the trailer, Mr Throssel said there was no shed on the common property for the storage of tools, materials and equipment, and that he uses the trailer to store the same and undertake the maintenance of the gardens on the common property. When he removed a tree and paved the section of the common property where he now parks his trailer, he agreed with the respondent that he could park his trailer on that section.
77 Mr Throssel gave evidence that he used the trailer to attend to all aspects of maintenance work which he performs for the respondent. He agreed in crossexamination that he uses his trailer to undertake his daughter's garden as well.
78 The Tribunal accepts that the arrangement between the respondent and Mr Throssel to allow him to park his campervan and trailer on the common property in exchange for the gardening maintenance, is a use of the common property that benefits all of the lot proprietors and falls within the power conferred by bylaw 1 of Sch 2 of the ST Act. There was no evidence that the respondent had been given the permission to use the common property in this way as is required by by-law 1 of Sch 2 of the ST Act. The respondent did note that the applicant, as the chairman of the council of the respondent for some time, was aware of the respondent's arrangement with Mr Throssel and had not ever complained about it. The applicant did not provide the Tribunal with any proof that the written permission had not been given. Mr Hordyk stated that there were many years of minutes that he would need to canvass to check to see if the arrangement had been minuted. He had not done so for these proceedings. The applicant's complaint is not so much that Mr Throssel parks his campervan and trailer on the common property as it is the value of that privilege. The applicant says that the value of that privilege must be taken into account when assessing if the respondent is using funds and common property lawfully. The applicant adduced no evidence of the value of the parking. However, he did concede that the cost of outsourcing the services of Mr Throssel by the respondent would be far greater than the benefits Mr Throssel received. Given that concession, the Tribunal finds that the respondent is managing the common property for the benefit of all of the lot proprietors because of the saving to the respondent (and the lot proprietors) in having the services provided by Mr Throssel. For the reasons already stated, the Tribunal finds that the common property is properly maintained by the respondent through the efforts of Mr Throssel to, at least, a good standard.
79 At the AGM on 7 May 2011, it is recorded that there were two written proposals tabled regarding payment to Mr Throssel for an allowance over and above the waived strata levy. One was from Ms Marshall, who is the owner of Unit 6, and one is from Mr Harry Hordyk, who is a coowner of Unit 3. The minutes record the following:
These two proposals were discussed at length. The following is noted:
Furthermore, it was noted that the above proposal will have the effect of monthly financial outcome for Steve Throssel as from this month:
= $330/month or $76.15/week
(Note: that is equivalent cost per owner of $10.60/week x 7 units.)
Before this proposal was adopted, a heated discussion took place between Mr Stann and Mr Throssel. Mr Matthew Lovett took the position of chairman as Mr Stann stood down for the purpose of discussion. A number of issues were raised.
The chair was taken again by Glynn Stann. It was then moved by Linda Lovett to adopt the above remuneration proposal and that is seconded by Neville Fleming. Unanimously adopted.
80 The proposal was unanimously adopted at that meeting. The terms and conditions of the levies (including to waive them) is something that the lot proprietors in general meeting are able to determine. The applicant has failed to establish that the arrangement is in any way in breach of the ST Act.
81 The Tribunal finds that Mr Throssel's use of the designated areas of the common property to park his campervan and trailer constitute management of the common property for the benefit of all of the lot proprietors. The applicant has not established that the permission extended to Mr Throssel to use the common property in this manner is not authorised by the bylaws and he has not established that it was not agreed with the respondent and that there is no written permission in existence. Further, the applicant has failed to adduce evidence of the value of this use and, in any event, concedes that the total value of the benefits are far less than the market cost of the services provided by Mr Throssel. The Tribunal also finds that the waiver of the levies as resolved is not in breach of the respondent's obligations under the ST Act, given that the resolution was unanimously passed.
The respondent's evidence of process and Mr Throssel's remuneration
82 Mr Hordyk, in his letter to the Tribunal dated 15 May 2012, indicated that, since the AGM of 6 May 2006, Mr Throssel's quarterly levies had been waived in exchange for him undertaking garden and other caretaker duties. It is noted by Mr Hordyk that the 12 years or so prior to that date, Mr Throssel had not been paid an allowance and his levies had not been waived. All Mr Throssel received during those 12 years for his garden maintenance work was the right to park his campervan and trailer on the common property as described.
83 At the AGM on 7 May 2011, it was resolved that Mr Throssel would be remunerated by the payment of the sum of $3,960 per annum, comprising a waiver of his quarterly levies ($300 per quarter) and the payment of $230 per month from the respondent's funds raised by the accumulation of the lot proprietors' levies. This payment was in addition to an indulgence that he was permitted to park his campervan and trailer on the common property. This package of benefits was an acknowledgement of his services in maintaining the common property on a daily and weekly basis and as directed by the respondent from time to time. The arrangement is reviewed annually at the AGM. In addition, Mr Throssel was to be reimbursed for the expenditure of materials and equipment costs in performing this work.
84 Mr Hordyk gave evidence for the respondent that Mr Throssel's duties include anything that the secretary advised him to attend to that is within his expertise, or in his calling, profession or trade. Mr Hordyk stated in his letter to the Tribunal that major work required approval of a quorum of lot proprietors before proceeding, and that emergency work received immediate attention (respondent's submissions, dated 28 June 2012). Mr Hordyk also stated in that letter that Mr Throssel's daily tasks include:
He also stated that on a regular basis Mr Throssel is to check for:
85 The Tribunal is satisfied that the respondent has in place a process for detection of any maintenance issues arising on the common property, and an orderly process of regular and specific attendance to the maintenance of the common property.
86 The applicant conceded during the hearing that, should quotes for this regular maintenance work be provided, the cost of a third party service provider would be well in excess of the benefits conferred by the respondent on Mr Throssel. However, the applicant asserted that, at least if the respondent were to outsource all of the maintenance work, there would be 'transparency' and 'accountability', as there would need to be a clear list of duties.
87 There is no statutory obligation on the respondent to outsource the performance of all maintenance work. There is no obligation on the respondent to have the performance of the maintenance work done at market rates. There is no reason why the respondent could not delegate all maintenance work to be undertaken by the lot proprietors, or some of them, with their agreement. In this strata scheme, only Mr Throssel and the applicant are lot proprietors/occupiers. All other lot proprietors reside elsewhere and do not wish to be burdened with the regular maintenance. That is why they agreed at the AGMs and EGM for Mr Throssel to be delegated that task and be rewarded for his services by the conferral of a small annual benefit. There is no statutory obligation on the respondent to identify a list and identify the time spent on maintenance tasks.
The Tribunal's power to make the order sought and conclusion
88 The Tribunal is not empowered by the ST Act or the State Administrative Tribunal Act 2004 (WA) to make the orders sought. Such orders interfere in the statutory function of the respondent and interfere in the exercise of the powers of the lot proprietors to propose, debate and resolve matters in general meeting. The Tribunal finds that the lack of a list of duties and log book records for work by Mr Throssel is not a breach of the ST Act and, as such, no order can be made going to these issues. The Tribunal finds that the benefits conferred by the respondent on Mr Throssel in exchange for his work are not in breach of the ST Act. Further, the Tribunal finds that at the AGMs and the EGM, the applicant's attempts to enforce the requirement of a list of duties on Mr Throssel failed when raised. There was no majority support for his proposal. The applicant is not entitled to make application to the Tribunal to attempt to achieve the result that did not enjoy majority support amongst the lot proprietors in general meeting.
89 The applicant has raised these matters under the guise of corporate governance and accountability. The Tribunal considers that the application is without foundation.
90 For the reasons expressed herein, the application is dismissed.
I certify that this and the preceding [90] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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