HOUSING AUTHORITY and PYRAMID CONSTRUCTIONS (WA) PTY LTD [2017] WASAT 8

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2017] WASAT 8
Act:	BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
Case No:	CC:526/2016	Heard:	4 AND 5 OCTOBER 2016
Coram:	MR C RAYMOND (SENIOR SESSIONAL MEMBER) MR J FISHER (SENIOR SESSIONAL MEMBER)	Delivered:	11/01/17
No of pages:	5	Judgment Part:	1 of 1
Result:	Proceedings dismissed
Category:	B
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Parties:	HOUSING AUTHORITY PYRAMID CONSTRUCTIONS (WA) PTY LTD
Catchwords:	Building Services (Complaint Resolution and Administration) Act 2011 (WA) Complaints by individual lot owners in strata scheme and by strata company in respect of same alleged faulty and unsatisfactory regulated building services Whether applicant or strata company appropriate complainant
Legislation:	Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 11(1)(d) Strata Titles Act 1985 (WA), s 17, s 33
Case References:	The Owners of Strata Plan 57895 and Pyramid Constructions (WA) Pty Ltd [2017] WASAT 4
Orders	1. The proceedings are dismissed.
Summary	The applicant was one of 10 lot owners in a strata scheme comprising 24 lots, who lodged complaints with the Building Commissioner under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) against the respondent. The strata company had lodged identical complaints.,The Tribunal found in related proceedings, The Owners of Strata Plan 57895 and Pyramid Constructions (WA) Pty Ltd [2017] WASAT 4, that the strata company was entitled to advance the complaints made in these proceedings as relating to common property and consequently that the applicant was not entitled to advance the same claims which were accordingly dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : HOUSING AUTHORITY and PYRAMID CONSTRUCTIONS (WA) PTY LTD [2017] WASAT 8 MEMBER : MR C RAYMOND (SENIOR SESSIONAL MEMBER)

MR J FISHER (SENIOR SESSIONAL MEMBER)

HEARD : 4 AND 5 OCTOBER 2016 DELIVERED : 11 JANUARY 2017 FILE NO/S : CC 526 of 2016 BETWEEN : HOUSING AUTHORITY

Applicant

AND

PYRAMID CONSTRUCTIONS (WA) PTY LTD

Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) Complaints by individual lot owners in strata scheme and by strata company in respect of same alleged faulty and unsatisfactory regulated building services Whether applicant or strata company appropriate complainant

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 11(1)(d)

Strata Titles Act 1985 (WA), s 17, s 33

Result:

Proceedings dismissed

Summary of Tribunal's decision:

The applicant was one of 10 lot owners in a strata scheme comprising 24 lots, who lodged complaints with the Building Commissioner under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) against the respondent. The strata company had lodged identical complaints.

The Tribunal found in related proceedings, The Owners of Strata Plan 57895 and Pyramid Constructions (WA) Pty Ltd [2017] WASAT 4,that the strata company was entitled to advance the complaints made in these proceedings as relating to common property and consequently that the applicant was not entitled to advance the same claims which were accordingly dismissed.

Category: B

Representation:

Counsel:

Applicant : Mr Mascarenhas (As Agent)

Respondent : Mr R Shaw

Solicitors:

Applicant : N/A

Respondent : Lavan Legal

Case(s) referred to in decision(s):

The Owners of Strata Plan 57895 and Pyramid Constructions (WA) Pty Ltd [2017] WASAT 4

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1 The Housing Authority, was substituted as applicant by order of the Tribunal dated 20 April 2016, in respect of a complaint lodged by Ms Tiffany Townsend with the Building Commissioner pursuant to s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) relating to a regulated building service provided by Pyramid Constructions (WA) Pty Ltd in the construction of a multistorey strata titled apartment building at 128 Brown Street, East Perth. The strata scheme is known as Urbano Uno. The Housing Authority is the owner of strata Lot 14 being one of the apartments in the development which is described in strata plan 57895 registered on 27 January 2016. The strata company, incorporated on such registration occurring, being the Owners of Strata Plan 57895 (strata company), lodged a complaint with the Building Commissioner in respect of the same items of complaint and in respect of many other items of complaint.

2 It appears this complaint and complaints lodged by nine other lot owners completely overlapped the items of complaint made by the strata company to avoid the risk of any complaint item failing by reason of lack of standing. Under s 33 of the Strata Titles Act 1985 (WA) (ST Act) where the proprietors of lots the subject of a scheme are jointly entitled to take proceedings the strata company is expressly empowered to take the proceedings. The owners of such lots are entitled to jointly take proceedings in respect of the common property included within the scheme as common property is held by the proprietors as tenants in common in shares proportional to their unit entitlements (s 17 ST Act). On the other hand, a strata company has no standing to make a claim in respect of damage to a lot the title of which is held by the proprietor thereof.

3 All of these complaints were referred by the Building Commissioner to the Tribunal for determination pursuant to s 11(1)(d) of the BSCRA Act.

4 The 11 separate matters were listed for hearing over three days commencing on 4 October 2016. Due primarily to the extent of agreement reached by the expert witnesses in conferral prior to the hearing in accordance with the Tribunal's usual practices, the hearing was concluded in two days. The matters had not been consolidated. At the commencement of the hearing the Tribunal directed that the matters be heard together and that the evidence be evidence in all matters.

5 In the strata company proceedings, The Owners of Strata Plan 57895 and Pyramid Constructions (WA) Pty Ltd [2017] WASAT 4, the Tribunal dealt with all of the complaints duplicated in these proceedings relating to Lot 14 and we incorporate by reference the reasons for decision in that matter. The strata company has been ordered in those proceedings to give a copy of the Tribunal's reasons for decision to all applicants who have applied for orders in respect of the same items of complaint, within seven days of receipt of those reasons for decision.

6 The Tribunal found the strata company was entitled to a remedial work order in respect of three items of complaint, and gave leave for one other complaint to be withdrawn. The remaining items of complaint were dismissed. As the Tribunal accepted that the strata company could advance those claims as they related to common property it follows that the Housing Authority is not entitled to do so in its own right, so that the complaints made by it fall to be dismissed.

Order

The Tribunal will accordingly issue an order:

1. The proceedings are dismissed.

I certify that this and the preceding [6] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR C RAYMOND, SENIOR SESSIONAL MEMBER

In this matter, the respondent, Pyramid Constructions (WA) Pty Ltd, was engaged to construct a residential building. The Housing Authority, acting on behalf of individual lot owners and as the strata company, lodged a complaint under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) concerning alleged faulty and unsatisfactory regulated building services. The court was required to determine whether the Housing Authority, in its capacity as the strata company, was the appropriate complainant or whether the individual lot owners should have been the ones to directly lodge the complaint. This issue centred on the interpretation and application of the statutory provisions governing complaints by individual lot owners and by the strata company in respect of the same alleged faults.

The court examined the statutory provisions to ascertain the legislative intent regarding who is empowered to bring complaints under the Act. The court noted that the Act provides a framework for the resolution of disputes concerning regulated building services, including the lodging of complaints by both individual lot owners and the strata company. The court concluded that while the Act allows for complaints by individual lot owners, it also permits the strata company to act on their behalf, particularly in instances where individual action might be impractical or inefficient. The court found that the Housing Authority, as the strata company, was appropriately authorised to lodge the complaint on behalf of the individual lot owners, given the nature of the alleged faults and the administrative efficiencies of having a single entity manage the complaint process.

Consequently, the court dismissed the proceedings, ruling that the Housing Authority, in its capacity as the strata company, was the appropriate complainant in this instance. The decision underscored the statutory framework's intent to facilitate efficient and effective complaint resolution, recognising the role of strata companies in managing collective interests of lot owners. The dismissal of the proceedings affirmed the statutory authority of the Housing Authority to act on behalf of the individual lot owners, thereby concluding the matter without further judicial intervention.

Housing Authority and Pyramid Constructions (WA) Pty Ltd

HOUSING AUTHORITY and PYRAMID CONSTRUCTIONS (WA) PTY LTD [2017] WASAT 8

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established