2 February 2024
January 2024 – Strata Regulatory Watch
In this edition we cover: NSW: Changes to strata and community titles laws in NSW NSW : The Mascot Towers case Blog Post: Stratum Title – the manna of property title QLD: BUGT and QLD…
In this recent decision of the Supreme Court of Western Australia, the Court upheld the decision of the State Administrative Tribunal (Tribunal) in Poland Superannuation Pty Ltd and The Owners of Dolphin Apartments Mandurah Strata Plan 49518  WASAT 103. The Tribunal and the Supreme Court found that the proper interpretation of a scheme by-law which prohibited a commercial lot owner from accessing or using common property, including recreational facilities, on or above the first floor of the building, was properly characterised as an exclusive use by-law in favour of the 60 residential lot owners. This was despite the by-law not positively stating that it conferred exclusive use on any particular owner.
The Court noted that this particular point of construction had not been the subject of previous authority.
This decision affirms to the WA strata community that there are a broad range of circumstances in which a by-law will be considered to be an exclusive use by-law under the amended Strata Titles Act 1985 (WA) (Act).
When interpreting a scheme by-law, it is important to examine not only the words used, but the context of the by-law within the whole of the scheme by-laws and the scheme design, and whether the substance and effect of the by-law or by-laws together amounts to the grant of an exclusive use and enjoyment right or a special privilege over any part of the common property to an owner or group of owners. Put simply, a by-law may expressly state it is an exclusive use by-law, or this may be its effect based on the above principles of interpretation.
From a Management Perspective
This case demonstrates the importance of getting specialist legal advice when drafting and interpreting strata scheme by-laws. This advice is important to ensuring that your management firm is understanding and applying the scheme by-laws correctly, especially where a differing basis of levying is concerned. These legal principles of interpretation are also very important when assisting a strata company to manage its common property and financial obligations, or if they are looking to update, amend, repeal or consolidate scheme by-laws. In order to comply with the Act, the strata company should get legal advice about the proper drafting and/or interpretation of the by-laws to ensure that they are correctly classified as governance or conduct by-laws and so as to determine the type of resolution required under the Act to amend or repeal them.
How BAGL can help
BAGL successfully represented the applicant, Poland Superannuation Pty Ltd in the original application to the Tribunal. Both the Tribunal and now the Supreme Court accepted the arguments put to them by BAGL as to the proper application of the Act and the proper interpretation of the scheme by-laws in that case Having been involved in that matter and assisting hundreds of clients with their scheme by-law matters since the amendments to the Act came into force, we are well placed to assist strata companies in all matters relating to their scheme by-laws.
All enquiries are welcome to our Perth office at email@example.com.
This article was written by Alissa Hammond, a solicitor in our Perth office.