Cases
Are by-laws about legal costs invalid?
Andrews v Coralie Gardens [2022] WASAT 2
The Strata Company made by-laws authorizing it to levy the:
- costs incurred in a debt recovery process against the owner who owed the debt; and
- costs incurred in an unsuccessful legal action against the owner commencing the legal action.
SAT had to decide whether the by-laws were inconsistent with the SAT Act or the Magistrates Court Act on grounds that they removed SAT and the Magistrates Court’s jurisdiction and discretion to award costs.
SAT decided that the by-laws did not remove it or the Magistrates Court’s jurisdiction and discretion to award costs. The by-laws operated as an agreement between the strata company and its members to indemnify the Strata Company against its litigation or debt recovery costs and to avoid the need to apply to SAT or the Magistrates Court for a cost order.
SAT said the decision dealt with objections about the invalidity of by-laws under section 46(b) of the Strata Titles Act (“ST Act”) and left the door open to later decide on objections under sections 46(a) or (j) of the ST Act.
Which documents can an owner inspect?
Carr v 252 Cosy Corner Road, Kronkup [2022] WASAT 59
The owner applied to inspect a wide range of documents and SAT had to decide what are the boundaries to the Strata Company’s obligation to provide documents. SAT decided the following:
- The only threshold for inspection of documents of the Strata Company is whether the applicant falls within the prescribed class of persons in section 107(2) of the Strata Titles Act;
- If the applicant falls within this class of persons, the documents are those required to be held by the Strata Company and is not protected by legal professional privilege[1] the documents should be provided;
- SAT has no discretion to refuse inspection even if it believes the request is not within reasonable bounds or involves serious potential of missuse, oppression or pettiness.
- Only documents and not information have to be provided
Unanimous resolutions, subdivision, and maintenance obligation of the Strata Company
Element 996 Strata Plan v Tobias [2022] WASAT 49
Structural beams in a multilevel building showed signs of stress and cracking. The Strata Company had to take immediate action to avoid a structural collapse. The remedial works required the installation of steel columns on the common property and 2 parking bay part lots.
To ensure that the parking bays were compliant with Australian Standards after the remedial works, the 2 affected lots and 3 other lots had to be subdivided and the schedule of unit entitlements amended.
The Strata Company needed a unanimous resolution to approve the subdivision. At the EGM, no owner voted against the resolution, but 29 owners did not vote and subsequently failed to give written consent. The Strata Company applied to SAT for an order under s.200(2)(n) that the resolution must be taken to have been unanimously passed.
SAT exercised its discretion to make a s.200(2)(n) order for the following reasons:
- The Strata Company is obliged to keep the common property in good and servicable repair and had no choice but to do the repair work.
- After the repair work, the scheme plan was not reflective of the actual building and had to be rectified.
- It is reasonable, fair and appropriate that the 2 owners affected by the remedial work have car bays complying with the Australian Standards.
- No owner voted against the resolution, and the Strata Company complied with the procedures for an EGM.
Short facts
What happens when a lot owner dies? Who can attend the AGM?
The adminstrator of a will who holds letters of administration (owner died without a will) or the executor (owner died with a will) can attend the AGM and should be given notice of the AGM.
Who is responsible for maintaining an external antenna or airconditioning unit of a lot owner?
If the lot boundaries are the inside surfaces of the lot walls and ceiling and the owner has not been granted the exclusive use with the obligation to maintain the antenna or the airconditioner unit, the duty to maintain is on the strata company.
Legislation
- The Transfer of Land Amendment Act 2022, which came into force on 24 June 2022, amended the following sections of the Strata Titles Act:
- Deleting s.58(3) that stated: “The Transfer of Land Act 1893 section 48B does not apply to a certificate of title for a lot in a leasehold scheme.”
- Amending s.105(5)(a)(ii) as follows: “ the production of a duplicate or a certified copy of a certificate of title showing the mortgage as having been discharged;”
- Deleting section 183(17)(b) that stated: “if there is a duplicate certificate of title for a lot in the strata titles scheme, the owner of the lot must deliver the duplicate certificate of title to the Registrar of Titles; or”
- Deleting Schedule 2A clause 21Z(2) that stated: “The Registrar of Titles may amend the duplicate certificates as mentioned in subclause (1)(b) when they are lodged in the Authority’s office for the purpose of a dealing.”
- Deleting Schedule 2A clause 31E(2) that stated: “If the duplicate certificate of title issued for a lot is produced by a registered mortgagee of the lot for the registration of a notice of resolution under clause 31I, a certificate of that mortgagee is not required for the purposes of subclause (1)(e).”
- Deleting Schedule 2A clause 31K(2) that stated: “The Registrar of Titles may amend the duplicate certificates of title when they are lodged in the Authority’s office for the purpose of a dealing.”
- The Legal Profession Uniform Law Application Act 2022, which came into force on 1 July 2022, amended the Strata Titles Act:
- Deleting the definition of Australian Legal Practitioner in s.3(1).
- Amending the reference in s.163 from “Australian legal practitioner” to “a legal practitioner”.
- Amending the reference in s.219 from “Australian lawyer” to “a lawyer”.
- Deleting s.143(4) and inserting: ”A legal practitioner does not act as a strata manager in providing services that can, under the Legal Profession Uniform Law (WA), be provided only by a legal practitioner.”
Something funny
Recently, a tour guide was leading a group of tourists through a famous, ancient castle in Ireland. “This castle was built nearly eight hundred years ago. All features are original – not one stone has been changed, not one wall has been altered, and not one upgrade, superficial or functional, has occurred in all these years.”
“Wow-” interrupted a woman, rolling her eyes. “They must have the same Strata Manager I do.”
[1] Confidential communications, information or documents made or brought into existence for the dominant purpose of giving or receiving legal advice or of preparing for litigation. Examples will be legal opinions from Solicitors or Barristers