Large v Janus

LARGE -v- JANUS & ORS [2003] WADC 262

Last Update: 12/12/2003

LARGE -v- JANUS & ORS [2003] WADC 262
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WADC 262
Case No:	CIVO:225/2002	Heard:	17 SEPTEMBER 2003
Coram:	COMMISSIONER GREAVES	Delivered:	28/11/2003
Location:	PERTH	Supplementary Decision:
No of Pages:	4	Judgment Part:	1 of 1
Result:	Application granted

Parties:	MARIA BERNADETTE LARGE PETER JOSEPH JANUS STELLA MAY JANUS LAUREL DENISE SMITH
Catchwords:	Strata titles Application for declaration that resolution be deemed to have passed without dissent Turns on its own facts
Legislation:	Strata Titles Act 1985, s 51(1)
Case References:	McHattie v Tuscan Investments Pty Ltd (1997) 18 SR (WA) 231 Nil

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : LARGE -v- JANUS & ORS [2003] WADC 262 CORAM : COMMISSIONER GREAVES HEARD : 17 SEPTEMBER 2003 DELIVERED : 28 NOVEMBER 2003 FILE NO/S : CIVO 225 of 2002 BETWEEN : MARIA BERNADETTE LARGE

Plaintiff

AND

PETER JOSEPH JANUS

STELLA MAY JANUS

First Defendants

LAUREL DENISE SMITH

Second Defendant

Catchwords:

Strata titles - Application for declaration that resolution be deemed to have passed without dissent - Turns on its own facts

Legislation:

Strata Titles Act 1985, s 51(1)

(Page 2)

Result:

Application granted

Representation:

Counsel:

Plaintiff : Mr M A Atkinson

First Defendants : Not applicable

Second Defendant : Mr P J Janus (as spokesperson)

Solicitors:

Plaintiff : Healy Pynt

First Defendants : Not applicable

Second Defendant : In person

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

McHattie v Tuscan Investments Pty Ltd (1997) 18 SR (WA) 231

Case(s) also cited:

Nil

(Page 3)

1 COMMISSIONER GREAVES: This is an application pursuant to s 51(1) of the Strata Titles Act 1985 seeking a declaration that each of the resolutions numbered 5 and 6 of the Annual General Meeting of the owners of Millvista Terraces Strata Plan 11140 held on 2 September 2001 are sufficient to authorise the particulars acts proposed in the resolutions, and further that those resolutions each be deemed to have passed as a resolution without dissent.

2 During the course of the hearing before me, I ruled that the first defendants had no standing in the application for reasons then delivered and which are to be read with these reasons. The application seeks to give effect to two proposed by-laws that would confer on the plaintiff exclusive use, rights and special privileges over common property by allowing for the retention of alterations made to the roof over the entry porch and to the roof over the front terrace adjacent to Lot 5 in the strata complex. The second defendant voted against Resolution No 6. The history of the application is set out in the affidavit of Richard Alfred Collins at pars 4-15 inclusive. At par 18 of the affidavit, Mr Collins deposes to the fact that at the meeting, the resolutions were defeated, solely by the votes of the defendants. The first defendants voted against both of the resolutions. The second defendant voted against Resolution 6 only. Mr Collins observes that the minutes show the second defendant also voted in favour of Resolution 6 and says that this minute is incorrect.

3 As counsel for the plaintiff observed at p 11 of the transcript, there is now no opposition to Resolution 5 and accordingly it should be approved. The second defendant opposes the second resolution. She gave no evidence in support of her opposition. She was not represented before me but I gave Mr Peter Janus leave to speak on her behalf.

4 As appears from the affidavit of Mr Collins, the alterations the subject of both resolutions have been completed. The resolutions which appear respectively at p 248 and p 250 of the affidavit of Mr Collins require the plaintiff to maintain the alterations and to indemnify the strata company with respect to any liability arising from the alterations.

5 It quickly became apparent before me that the second defendant's opposition to Resolution No 6 arises out of what was described as an alteration to the fabric of the building and an alleged reduction in the value of the building. It is sufficient to say that no evidence in support of these assertions was led before the Court. On the other hand, the original architects of the building, Messrs Parry and Rosenthal, recommended at

(Page 4)

p 443 of the affidavit of Mr Collins that the alterations be allowed to remain as constructed.

6 On the evidence, no other reasonable conclusion is open in accordance with the approach of this Court in McHattie v Tuscan Investments Pty Ltd (1997) 18 SR (WA) 231. For these reasons, the Court will make the declarations as asked.

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The matter before the court was an application brought by Large against Janus, the body corporate for a strata scheme. The applicant sought a declaration that a resolution approving a proposed development be deemed to have passed without dissent. The resolution was put forward in relation to a proposed development to the strata scheme by the respondent, and the applicant, who was a unit owner, was opposed to the development. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the resolution could be deemed to have passed without dissent in the absence of a formal vote by all unit owners. The applicant argued that the resolution was validly passed without dissent, while the respondent argued that a formal vote was necessary. The court was required to determine whether the resolution was properly passed in accordance with the Strata Schemes Management Act 1996.

The court found that the resolution was validly passed without dissent. The court noted that the resolution was put forward in accordance with the provisions of the Act, and that there was no evidence to suggest that any unit owner had objected to the resolution. The court also found that the respondent had taken reasonable steps to ensure that all unit owners were aware of the proposed development and had an opportunity to object. The court held that the resolution was properly passed and that it could be deemed to have passed without dissent. The application was therefore granted, and the court made a declaration to that effect.

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