3 The appellants are the owners of lots 1, 2, 3 and 4 on Strata Plan SP 21513. The respondent is, as I have mentioned, the strata company for that scheme. The strata scheme in question comprises a total of 12 lots and common property located in Exmouth. A number of the lots, including those owned by the appellants, incorporate transportable or mobile homes.

4 The nature of the scheme is such that the boundaries of individual lots are the inner surfaces of the buildings. The effect of this is that the lot owners do not own the structure of the buildings. Accordingly, the buildings are outside the lots and form part of the common property of the strata scheme. It is unnecessary to explain this in further detail as it is an uncontested fact.

5 On 14 September 2010, the Shire of Exmouth issued notices to all of the strata lot owners and to the strata company pursuant to s 408 of the Local Government (Miscellaneous Provisions) Act 1960 (WA). Those notices required the immediate removal of the buildings. In a letter that accompanied the notices, the Shire referred to having been made aware of structural deficiencies in the buildings. The Shire had also carried out an inspection of the buildings and had concluded that there were such structural deficiencies.

6 The letter of 14 September 2010 then stated that the buildings were deemed, by reason of the deficiencies, to be neglected as defined in the Local Government (Miscellaneous Provisions) Act. The letter noted that the cyclone season was then approaching and that the Shire had a duty of care to the occupants of the buildings and surrounding residents.

7 The strata company and the lot owners, other than the appellants, applied to the State Administrative Tribunal for a review of the Shire's decision to issue the notices. The appellants, though not seeking a review, did seek an extension of time from the Shire to comply. That extension was not granted. The appellants were subsequently joined in the review application by an order of the Tribunal, but declined to participate in those proceedings.

8 On 5 May 2011, the Tribunal made orders that had the effect of extending the time for compliance with the notices. The individual lot owners withdrew their review applications in regard to the s 408 notices on those notices being varied to specify 30 September 2011 as the date for compliance. A similar conclusion was reached with the strata company when the Shire undertook not to enforce the notice issued to the strata company before 30 September 2011. The strata company then withdrew its application for review.

9 As the buildings formed part of the common property of the strata scheme, the obligation to remove them fell upon the strata company. Accordingly, it sought tenders for removal of the buildings. However, the strata company could not carry out its intention in respect of the lots owned by the appellants because they refused to vacate, or cause to be vacated, the buildings that formed the boundaries of their lots.

10 In consequence, the strata company made a new application to the Tribunal dated 12 August 2011. That application named the appellants as the other parties and sought orders that the appellants permanently vacate the relevant buildings by 2 September 2011. The evident purpose of this was to enable the strata company to comply with the Shire notice by 30 September 2011.

11 Also on 12 August 2011, the strata company held an extraordinary general meeting. At that meeting it was resolved to adopt a timetable as follows:

(1) All occupiers and personal possessions to be out of the buildings by 2 September 2011;

(2) electricity, telephone, water and sewerage services to be terminated as soon as possible after 2 September 2011;

(3) a contractor to remove the buildings between 12 September and 23 September 2011;

(4) the site to be cleaned up between 26 and 30 September 2011; and

(5) the shire be advised of completion on 30 September 2011.

12 A letter setting out that timetable was sent to the lot owners. On 16 August 2011, the strata company issued notices to the appellants pursuant to s 39 of the Strata Titles Act to the effect that the company intended to enter their lots to carry out work necessary to comply with the Shire notice. It was specified that entry would occur on and after 12 September 2011.

13 On 23 September 2011, the application to the State Administrative Tribunal by the strata company seeking orders that the appellants permanently vacate the relevant buildings came on for hearing. The application was opposed. The contentions made in opposition to the application were as follows:

(1) The power of a strata company to enter a strata lot to carry out work under s 39 does not extend to removal of the common property where this affects the rights of the owners to occupy the lots owned by them;

(2) that the right to occupy the buildings as common property is a question as to title to land covered by s 121 of the Strata Titles Act and that the Tribunal did not have jurisdiction to determine such a question;

(3) that since the application related to the destruction of common property, s 28 and s 29 of the Strata Titles Act were applicable and the application should have been brought in the District Court; and

(4) that the Tribunal was not the appropriate forum in which to deal with the alleged noncompliance of a Shire notice under s 408 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) because it was open to the Shire to seek an order under s 406 or s 408 of that Act for the owners to quit or to take the buildings down.

14 On 23 September 2011, Member Aitken delivered his decision in the Tribunal. He dismissed the contentions made by the appellants and made the order which is now the subject of this appeal.

15 Before turning to the grounds of appeal, I should note that the appellants have not sought to challenge the Shire notice. Indeed, it would appear that by letter dated 29 September 2010 addressed to the strata company, the appellants stated an intention not to appeal the notice because safety was of paramount importance. The appellants stated that they would be assisting the Shire in every possible way to remove and replace the buildings. See page 7 of the affidavit of Mr Butcher dated 26 October 2011.

16 The present proceedings do not challenge the Shire notice, thus whatever the outcome of this appeal, the notice would remain in force and the Shire will be able to take enforcement action. In these circumstances, it is not entirely clear what the appellants are endeavouring to achieve by this appeal. At best they can delay or frustrate the actions of the strata company, but this would be to no avail if the Shire brought compliance proceedings, as there is every reason to think that they would.

1. (a) The decision of Member Aitken was beyond his power as the dispute regarding the removal of the mobile homes from Strata Plan 21513 was a dispute relating to the title to land and as such solely with the jurisdiction of the Supreme Court.

(b) Member Aitken should have found that the mobile homes, being affixed to the land, and shown on the Strata Plan, formed part of the land. As such a dispute as to the removal of the mobile homes constituted a dispute as to the title to land.

1. (a) Member Aitken erred by concluding that the term 'work' referred to in Section 39 of the Strata Title Act 1985 extended to the removal of the mobile homes which formed part of the common property of Strata Plan 21513.

(b) The term 'work', although not defined in the Act, was limited in its meaning by reference to Section 35(1) which refers in substance to maintaining the common property.

1. There was no power for Member Aitken to order the disposal of the common property as contemplated in Section 19 as there was no evidence of compliance with Section 19(1)(a) of the Strata Titles Act 1985 by the strata company.

18 There is no contest that the buildings in this case form part of the common property. Part II div 2 of the Strata Titles Act deals with common property. Section 17, which is contained in div 2, provides:

(1) Common property shall be held by the proprietors as tenants in common in shares proportional to the unit entitlements of their respective lots.

(2) The Registrar of Titles shall in the certificate of title to a lot certify that the proprietor holds the share in the common property appurtenant to the lot in accordance with the unit entitlement of that lot as stated in the schedule of unit entitlement registered in respect of the scheme.

19 Section 19 provides for dealings in the common property. It relevantly provides:

(1) Except as otherwise provided in this section -

(a) no share in the common property may be disposed of except as appurtenant to the lot of the proprietor thereof; and

(b) an assurance of a lot operates to assure the share of the disposing party in the common property, without express reference thereto.

(2) Subject to subsection (10), a strata company may, pursuant to a resolution without dissent (or unanimous resolution, in the case of a twolot scheme) and where satisfied that all persons concerned have consented in writing to the transfer or lease, execute a transfer or lease of common property, other than common property the subject of a lease accepted or acquired by the strata company under section 18(1).

(3) Subject to subsection (10), a strata company, pursuant to a resolution without dissent (or unanimous resolution, in the case of a twolot scheme) and where satisfied that all persons concerned have consented in writing to the transfer, may, if not prevented by the terms of the lease, transfer a lease of common property accepted or acquired by the strata company under section 18(1) or grant, by way of sublease, a lease of its estate or interest in common property the subject of a lease so accepted or acquired.

(4) A strata company may, if otherwise empowered so to do, reenter under a lease, or, pursuant to a resolution without dissent (or unanimous resolution, in the case of a twolot scheme), accept a surrender of a lease, granted under subsection (2) or (3).

(5) Upon execution of a transfer or lease or sublease in accordance with subsection (2) or (3) -

(a) the transfer or lease or sublease is valid and effective without execution by any person having any estate or interest in the common property; and

(b) the receipt of the strata company -

(ii) exonerates the person taking under the transfer or lease or sublease from responsibility for the application of,

the moneys expressed to have been received by it and is likewise a sufficient discharge and exoneration for all moneys payable to the strata company under the transfer or lease or sublease.

(6) Every transfer or lease or sublease executed under subsection (2) or (3) shall be endorsed with or accompanied by a certificate under the seal of the strata company that the resolution referred to in the relevant subsection was duly passed and that all necessary consents were given.

20 Part IV of the Strata Titles Act deals with the management of strata schemes. Division 1 of pt IV contains provisions relating to strata companies. Section 35 provides:

Duties of strata companies

(1) A strata company shall -

(a) enforce the bylaws;

(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;

[(d) deleted]

...

(k) comply with notices and orders of any competent public authority or local government requiring repairs to or work to be done in respect of the parcel or building, or anything in, on or over it.

(2) A strata company that contravenes subsection (1)(e) or (f) commits an offence and is liable to a fine not exceeding $400.

21 The word 'parcel' is defined in s 3 to mean, 'The land comprised in a strata plan.'

22 Section 39 provides:

Power of strata company to enter

(1) For the purpose of carrying out -

(a) any work pursuant to section 38(1), (2), (3) or (6);

(b) any work required to be carried out by a strata company by a notice or order of a public authority or local government;

(c) any work referred to in section 35(1)(c);

(d) any work necessary to repair or renew any pipes, wires, cables or ducts referred to in section 11(2)(b); or

(e) any work required to be carried out by the strata company by order of a court or tribunal,

the strata company may, by its agents, servants or contractors, enter upon any part of the parcel for the purpose of carrying out the work -

(f) in the case of an emergency, at any time; or

(g) in any other case, at any reasonable time on notice given to an occupier of that part of the parcel.

(2) The strata company may, by its agents, enter upon any part of the parcel for the purpose of -

(a) inspecting that part of the parcel; or

(b) ensuring that the bylaws are being observed,

and may do so in the case of an emergency at any time or, in any other case, at any reasonable time on notice given to an occupier of that part of the parcel.

(3) A person shall not obstruct or hinder a strata company in the exercise of its power under subsection (1) or (2).

Penalty: $400.

23 Part VI of the Strata Titles Act deals with the resolution of disputes. In the event of a dispute between the strata company and individual owners - as here - application may be made to the Tribunal seeking orders to resolve that dispute.

24 Section 83 sets out the general powers of the Tribunal to make orders:

General powers of State Administrative Tribunal to make orders

(1) The State Administrative Tribunal may, pursuant to an application of a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot, in respect of a scheme, make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the bylaws in connection with that scheme on any person entitled to make an application under this subsection or on the council or the chairman, secretary or treasurer of the strata company.

(2) Where a strata company has a discretion as to whether or not it exercises or performs a power, authority, duty or function conferred or imposed on it by this Act, it shall be deemed to have refused or failed to exercise or perform that power, authority, duty or function only if it has decided not to exercise or perform that power, authority, duty or function.

(3) For the purposes of subsection (2), where -

(a) application is made to a strata company to exercise a discretion referred to in that subsection; and

(b) the strata company does not, before the expiration of the period of 2 months that next succeeds the making of the application -

(i) exercise or perform a power, authority, duty or function in accordance with the application; or

(ii) inform the applicant that it has decided not to exercise or perform the power, authority, duty or function in accordance with the application,

the strata company shall be deemed to have decided not to exercise or perform the power, authority, duty or function.

(4) Nothing in subsection (1) empowers the State Administrative Tribunal to make an order under that subsection for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed on the strata company by this Act where that power, authority, duty or function may, in accordance with any provision of this Act, only be exercised or performed pursuant to a unanimous resolution, resolution without dissent or a special resolution.

(5) Nothing in this Part authorises the State Administrative Tribunal to make an order of the kind that may be made under section 28, 29, 29A or 31.

(6) Nothing in this Part affects the generality of subsection (1), but an order in respect of any matter referred to in any other section of this Part shall not be made under this section.

25 Section 84 sets out further powers of the Tribunal:

Further powers of State Administrative Tribunal

(1) The State Administrative Tribunal is empowered to make an order that -

(a) requires a party to the dispute before it to pay money not exceeding the sum of $1 000 to a person specified in the order;

(b) requires a party to the dispute before it to do, or refrain from doing, some specified act to which the application relates;

(c) strikes out for want of jurisdiction the dispute before it.

(2) An order made by the State Administrative Tribunal may direct that the order shall be complied with within a period specified in the order.

(3) An order made by the State Administrative Tribunal that requires the payment of money may be made to take effect immediately or so as to take effect upon default being made in complying with some other order made by it.

26 Section 85 to s 94 then provide for a number of specific orders that may be made.

27 Part VII of the Strata Titles Act contains miscellaneous provisions. Section 121 limits the jurisdiction of the Tribunal where the case involves a question as to the title to land:

1. State Administrative Tribunal not to have jurisdiction where title to land in question

Notwithstanding any other provision of this Part, the State Administrative Tribunal shall not have jurisdiction under this Part in any case in which the title to land is in question otherwise than for the purpose of determining any matter before the State Administrative Tribunal and any determination made by the State Administrative Tribunal shall not have any force or effect except as provided by this Act.

Ground 1 - Is this a case in which the title to land is in question?

28 The appellants contend that the removal of the buildings would create an issue as to the validity and existence of their title to their individual lots because the interior surfaces of the buildings form the boundaries of those lots. Because the case raises this issue, it is submitted that pursuant to s 121 of the Strata Titles Act, the Tribunal did not have the power to determine the matter. The word 'power' appears to be used here in the same sense as 'jurisdiction'.

29 The respondent submits, firstly, that the title to land is not in question. The respondent says that the buildings are common property and the title to common property is not in issue. Insofar as the boundaries of individual lots are concerned, the respondent says that it is open to the appellants to seek an order varying the strata scheme under s 28 of the Strata Titles Act once the buildings are removed if there is any doubt as to the boundaries.

30 Secondly, the respondent submits that s 121 does not exclude the power of the Tribunal to make orders where an issue as to title is raised. The respondent places emphasis on the words 'otherwise than for the purpose of determining any matter before the Tribunal' as they appear in s 121. It is submitted that the application here falls within that exception. The respondent further submits that the application was not one that sought to alter any title to land, rather it sought to resolve a dispute as to compliance by the strata company with its duty to meet the terms of the Shire notice.

31 The respondent has also raised in oral submissions on this appeal that the word 'land' and the word 'buildings' are defined in s 3 of the Strata Titles Act in a way that suggests there is a distinction between those terms and that for the purposes of the Act, buildings are to be distinguished. The implication is that whilst buildings may, for other purposes, form part of land, the definitions indicate that this is not the case in respect of strata schemes. I place no reliance upon that submission in my conclusions.

32 I do not accept the appellants' contentions. In my view, the application did not raise a question as to the title to land. The appellants' title to the lots owned by them was not affected in any direct way by the order of the Tribunal. If, as is argued, the removal of the buildings would make it impossible to determine the boundaries of individual lots, that could be remedied by an application to vary the strata scheme. However, the appellants' title to their individual lots and the attached shares in the common property have not been and would unlikely be affected, even if a variation application was made.

33 In any event, the order made by the Tribunal was not that the buildings be removed, but that the appellants vacate the buildings. The authority for the strata company to remove the buildings did not derive from the Tribunal order, but from its duties under the Strata Titles Act to comply with the Shire notice in respect of the common property (s 35(1)(k)) and its power to carry out work in pursuance of that duty (s 38(1) and s 39(1)(b)).

34 Furthermore, even if the Tribunal proceedings did relate to a question of title, the jurisdiction of the Tribunal was not excluded by s 121. This is because any such question only arose for the purpose of determining an application properly brought under pt VI of the Act and any effect upon the title to land was entirely incidental to that application.

35 The appellants contend that Member Aitken erred in concluding that the word 'work' in s 39 extends to removal of buildings, as in the present case. They submit that when read with the duty in s 35 to repair or, where necessary, replace common property, the strata company cannot be construed as having authority to do work which results in the destruction of common property.

36 The appellants also argue that s 28 provides that the District Court has jurisdiction in the case of damage to, or destruction of, buildings and this supports a conclusion that destruction of buildings is in a separate category and not included in the work referred to in s 39.

37 The respondent submits that there is no basis for reading down the word 'work' as it appears in s 39. It is said that the strata company was obliged by s 35(1)(k) to carry out work on the common property in compliance with the Shire notice.

38 I do not accept the appellants' contentions. The practical effect of s 35 is to impose upon the strata company the duty to maintain the common property to the extent that it is reasonable to do so. The section contemplates that common property may not be fit for repair by referring to the possible need to renew and replace. I also note that in s 39 the words 'work' and 'repair' are used in a way that suggests that there is a distinction between them in some circumstances.

39 The appellants have, together with all other lot holders, an interest in the common property, but that interest does not give them special rights to particular parts of that common property. The rights of the appellants to a share of the common property do give them an interest in common with all other lot holders in the common property. That interest is a legal interest reflected in the certificate of title. On the other hand, the strata company has the duty to manage and control the common property for the benefit of all the proprietors (s 35(1)(b): See The Owners of Habitat 74 Strata Plan 222 v Western Australian Planning Commission [2004] WASC 23 [36]. The appellants submit that if the strata company is permitted to undertake work that involves removal of the transportable homes, their interest in the common property would be destroyed. It is said that this interpretation of the word 'work' would be inconsistent with the rights of ownership that the appellants share with the other lot holders in the common property.

40 I do not accept that argument. The common property does not consist solely of the buildings relevant to the appellants' lots, rather it includes all of the buildings in the strata scheme, as well as a large parcel of land. The appellants' rights are to a nominated share of the whole of the common property. Clearly, it is possible that the inventory of common property can change from time to time, but that does not involve any change to the property interests of the lot holders. The removal of the buildings would not, therefore, reduce or change the essential quality of the appellants' interest in the common property.

41 As regards s 28, in my view the evident purpose of this provision is to allow for an application to vary a strata scheme to be made where damage or destruction of a building makes such a change a practical necessity. That is not this case. The destruction that the appellants complain of is not destruction that has occurred, but destruction that they seek to prevent, namely, removal of the mobile homes. I do not accept that s 28 is the appropriate provision upon which to rely where work of the type contemplated here is sought to be undertaken. Furthermore, it is not clear to me that removal of the buildings would necessarily require any variation to the strata scheme. Accordingly, I do not accept that s 28 indicates or requires that the word 'work' in s 39 must be read down to exclude the work intended here.

42 The word 'work' is a word of wide meaning. Where used to denote an act, action or process the Short Oxford Dictionary defines 'work' as meaning 'a thing done ... a deed, a proceeding, ... purposive action involving effort or exertion ...' The meaning of the word is broad enough to include the action of removing buildings from a site. Neither its use in the relevant sections, nor the broader context of the Strata Titles Act or the purpose of the statute suggest that a more narrow meaning was intended: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (78) (McHugh, Gummow, Kirby and Hayne JJ). It is clearly appropriate and consistent with the Act that a strata company should have the power to deal with common property in a way that allows it to comply with a Shire notice that relates to an issue of public safety.

43 The appellants contend that removal of the mobile homes involves disposing of common property and as such it is precluded by s 19(1)(a) of the Strata Titles Act. It is submitted that Member Aitken erred because he had no power to order disposal of common property in the absence of proof of compliance with the requirements of s 19.

44 The respondent submits that s 19(1) is directed to ensuring that a share in the common property is only disposed of, in the sense of being transferred or leased, together with the interests in the relevant lot.

45 I do not accept the appellants' contention. A fair reading of the whole of s 19 leads to the conclusion that it is concerned with the transfer or lease of the common property. In this context s 19(1) should not be read as prohibiting the disposal of items that may comprise part of that common property at a particular time. What is proposed by the strata company is that the buildings be removed. This does not involve disposal of the common property as an undivided whole or of the appellants' shares in it.

46 In any event, the order made by the Tribunal was to vacate the mobile homes, not that they be destroyed. As I have noted earlier, the lawful authority of the strata company to remove the buildings does not derive from the Tribunal order. In those circumstances the issue of s 19(1)(a) did not properly arise in the proceedings before the Tribunal and no error has been established.

47 The question of leave in relation to an appeal of this nature has been considered by Buss JA in the case of Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361:

In Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, Phillips JA (with whom Tadgell and Batt JJA agreed) enunciated guidelines for determining whether to grant leave to appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The provisions of s 148 are not materially different from the provisions of s 105(1) and (2) of the Western Australian Act. His Honour said, at 337 [16]:

When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.

Compare, in the context of the principles to be applied in determining whether leave to appeal should be granted from an interlocutory judgment or order, the observations in Wilson v Metaxas [1989] WAR 285 at 294 and The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 at 56 - 57.

In my opinion, the guidelines articulated in Secretary to the Department of Premier and Cabinet v Hulls should be taken into account in considering whether to grant leave under s 105(1) of the State Administrative Tribunal Act. It must be emphasised, however, that those guidelines are not rigid or exhaustive, and leave should be granted if, in all the circumstances, a grant of leave is in the interests of justice [17], [18].

48 Whilst each of the three grounds raises a question of law, that in itself is not sufficient to justify a grant of leave. There must also be a real or significant argument; one that raises a sufficient doubt about the question of law. In my view, that requirement has not been met and I would therefore refuse leave.

49 Furthermore, it is my view that there is no substantial injustice that could flow from the Tribunal decision. I say that because, firstly, the Shire notice has not been challenged and remains in force. Secondly, the appellants have had over 12 months to comply with the Shire notice and if they have not made other living arrangements, it is through no lack of opportunity. Thirdly, there has been no stay of the Tribunal order. Fourthly, on the face of it, the Shire notice is one designed to ensure the safety of the appellants as well as other surrounding residents.

50 In those circumstances, leave to appeal will be refused and the appeal dismissed.