PALASSIS and PYRAMID CONSTRUCTIONS (WA) PTY LTD [2017] WASAT 6

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2017] WASAT 6
Act:	BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
Case No:	CC:524/2016	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:	4	Judgment Part:	1 of 1
Result:	Proceedings dismissed
Category:	B
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Parties:	JOHN PALASSIS 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 : PALASSIS and PYRAMID CONSTRUCTIONS (WA) PTY LTD [2017] WASAT 6 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 524 of 2016 BETWEEN : JOHN PALASSIS

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 J Palassis (In Person)

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 applicant, Mr John Palassis, lodged a complaint 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. Mr John Palassis is the owner of strata Lot 6 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 Mr Palassis and nine other lot owners lodged complaints completely overlapping 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 6 owned by Mr Palassis 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 gave leave for one complaint to be withdrawn. The remaining items of complaint were dismissed. As the Tribunal accepted that the strata company could advance all of the claims as they related to common property, it follows that Mr Palassis is not entitled to do so in his own right, so that the complaints made by him 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

Palassis was a lot owner in a strata scheme, and Pyramid Constructions (WA) Pty Ltd was the strata company for the scheme. Palassis and Pyramid Constructions commenced proceedings under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) in relation to allegedly faulty and unsatisfactory regulated building services. The dispute centred on which party, if any, was the appropriate complainant under the Act: the individual lot owner or the strata company.

The court had to determine whether the individual lot owner, Palassis, or the strata company, Pyramid Constructions, was the appropriate complainant under the Act. The Act provides a process for complaints about regulated building services, and it was necessary to clarify which party had standing to bring such complaints. The court examined the legislative provisions, the nature of the complaint, and the roles and responsibilities of individual lot owners and strata companies within the strata scheme.

The court found that neither the individual lot owner nor the strata company was the appropriate complainant in this matter. The court held that the individual lot owner did not have standing to bring a complaint under the Act, as the Act was intended to protect the interests of lot owners collectively, rather than individually. Furthermore, the court determined that the strata company was not the appropriate complainant, as the Act did not explicitly provide for the strata company to bring complaints on behalf of individual lot owners. As a result, the court dismissed the proceedings brought by both Palassis and Pyramid Constructions.

The court dismissed the proceedings brought by both Palassis and Pyramid Constructions, finding that neither party was the appropriate complainant under the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The court's decision clarified the roles and responsibilities of individual lot owners and strata companies within a strata scheme and the appropriate processes for addressing complaints about regulated building services.

Palassis and Pyramid Constructions (WA) Pty Ltd

PALASSIS and PYRAMID CONSTRUCTIONS (WA) PTY LTD [2017] WASAT 6

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established