S and L Nominees Pty Ltd and Pyramid Constructions (WA) Pty Ltd

[2017] WASAT 13

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)

CITATION:   S & L NOMINEES PTY LTD and PYRAMID CONSTRUCTIONS (WA) PTY LTD [2017] WASAT 13

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 532 of 2016

BETWEEN:   S & L NOMINEES PTY LTD

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:     No Appearance

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, S & L Nominees Pty Ltd, (S & L) 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. S & L is the owner of strata Lot 24 being a commercial unit 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 item 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 24 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 the one and only item of complaint raised.  As the Tribunal accepted that the strata company could advance this claim as it related to common property it follows that S & L is not entitled to do so in its own right and consequently the item of complaint raised by S & L will 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