MALLET and DALE ALCOCK HOMES PTY LTD [2026] WASAT 67

[2026] WASAT 67 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA) CITATION : MALLET and DALE ALCOCK HOMES PTY LTD [2026] WASAT 67 MEMBER : MR D AITKEN, SENIOR MEMBER HEARD : 10 DECEMBER 2025 and 6 MARCH 2026 DELIVERED : 5 JUNE 2026 FILE NO/S : CC 869 of 2020 BETWEEN : MARIE-HELENE MALLET Applicant AND DALE ALCOCK HOMES PTY LTD Respondent Catchwords: Building dispute - Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Strata Titles Act 1985 (WA) - Does the owner of all the lots in a strata scheme have standing to pursue a building service complaint about common property in a strata scheme - Can the strata company be joined as a party to the proceeding after the limitation period for making a building service complaint has expired - Proceeding dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) on the basis that it was frivolous, vexatious and an abuse of process -- 1 of 29 -- [2026] WASAT 67 Page 2 Legislation: Building Act 2011 (WA), s 33(1) Building Services (Complaint Resolution and Administration) Act 2011 (WA), 3(1), s 5(1), s 5(5), s 5(5)(a), s 6(2)(a), s 7(1)(a), s 9, s 10, s 11(1)(d), s 12(a), s 36(1), s36(1)(b), s 38(1), s 51 Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5, reg 7(a)(ii) State Administrative Tribunal Act 2004 (WA), s 9, s 38, s 38(1), s 46(1), s 47, s 47(1)(a), s 47(1)(c), s 47(2), s 47(3) State Administrative Tribunal Rules 2004 (WA), r 42A Strata Titles Act 1985 (WA), s 10, 13(7)(b), s 14, s 14(1), s 14(5), s 14(6), s 91, s91(1), s 91(1)(b), s 91(1)(c), s 91(1)(c)(i), s 91(1)(c)(ii), s 100, s 100(1)(a), s 100(2)(a), s 100(2A), s 100(7), s 103, s 103(1), s 140, s 140(4), Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 60 Result: Proceeding dismissed Category: B Representation: Counsel: Applicant : Mr J G Morrow Respondent : Mr T Pontre Solicitors: Applicant : Graham Morrow & Associates, Barristers & Solicitors Pty Ltd Respondent : GV Lawyers Case(s) referred to in decision(s): Aderemi and TAFE International WA [2024] WASAT 141 Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 Commissioner of Police v Eaton [2013] HCA 2; (2013) 252 CLR 1 -- 2 of 29 -- [2026] WASAT 67 Page 3 Laurent and Commissioner of Police [2009] WASAT 254 Leeming and Proud Holdings Pty Ltd [2021] WASAT 12 Lendlease Engineering Pty Ltd v Owners Corporation No 1 PS526704E & Ors [2022] VSCA 105 Lendlease Engineering Pty Ltd v Owners Corporation No.1 & Ors [2021] VSC 338 Mohammadi v Bethune [2018] WASCA 98 Owners Corporation No.1 PS526704E v Lendlease Engineering Pty Ltd (Building and Property) [2019] VCAT 1909 Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 The Owners of 875 Wellington Street, Strata Plan 13599 and Kamil Also Known As Ahmed Kamil [2025] WASAT 19 Zimowski and Ideal Homes Pty Ltd [2022] WASAT 82 -- 3 of 29 -- [2026] WASAT 67 Page 4 REASONS FOR DECISION OF THE TRIBUNAL: Introduction 1 The applicant, Ms Marie-Helene Mallet (Ms Mallet) and Lighthouse Equity Pty Ltd made a building service complaint to the Building Commissioner against the respondent, Dale Alcock Homes Pty Ltd (Builder) under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) on 22 June 2020. The Building Commissioner accepted the complaint on 2 July 2020 under s 7(1)(a) of the BSCRA Act. 2 The complaint concerned building work (the Building Work) in the construction of an apartment building by the Builder on a parcel of land situated in Cloverdale, Western Australia (the Land) which was a 'regulated building service' under the BSCRA Act. 3 The Building Commissioner referred the complaint to the Tribunal on 22 July 2020 under s 11(1)(d) of the BSCRA Act, which commenced this proceeding.1 4 The referral included a 'defects list' containing 1142 complaint items and the investigation report2 which accompanied the referral stated that the defects list was utilised as the complaint schedule. The investigation report stated that many of the complaint items were resolved but it did not state that the complaint items had been withdrawn or were not being referred to the Tribunal, so the Tribunal proceeded with the matter on the basis that all complaint items had been referred to it. 5 The history of the proceeding has been extraordinarily long. It is not necessary for the purposes of this decision to set out that history in any detail, other than to note that there have been 25 directions hearings, a mediation conference and a compulsory conference. 6 During this process, Lighthouse Equity Pty Ltd was removed as an applicant and all but 42 complaint items3 (remaining complaint items) 1 Under s 12(a) of the BSCRA Act when the Building Commissioner refers a complaint to the Tribunal each complainant is taken to be an applicant in the proceeding. 2 Under s 9 and s 10 of the BSCRA Act the Building Commissioner is required to cause an investigation of an accepted complaint to be carried out by an authorised person, who must prepare a report on the investigation and give it to the Building Commissioner. 3 Being complaint items 868, 869, 870, 876, 877, 881, 882, 884, 885, 889, 892, 895, 898, 900, 902, 934, 958, 960, 962, 963, 968, 969, 971, 972, 985, 986, 1048, 1057, 1058, 1059, 1066, 1067, 1069, 1096, 1104, 1109, 1113, 1118, 1121, 1127, 1128 and 1139. -- 4 of 29 -- [2026] WASAT 67 Page 5 have either been withdrawn under s 46(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) or resolved by way of a building remedy order made by the Tribunal under s 36(1)(b) and s 38(1) of the BSCRA Act by consent of the parties. 7 The apartment building and the Land on which it is situated became a strata scheme (Strata Scheme) by the registration under the Strata Titles Act 1985 (WA) (ST Act) on 24 November 2020 of Strata Plan 81437 (Strata Plan). 8 Ms Mallet is the registered proprietor (owner) of all 16 lots (the Lots) in the Strata Scheme. Dismissal application 9 On 19 September 2025 the Builder filed an application under s 47 of the SAT Act seeking an order that the proceeding be dismissed or struck out with respect to the remaining complaint items (dismissal application). 10 The grounds for the dismissal application are that the remaining complaint items relate to common property (Common Property) in the Strata Scheme and Ms Mallet does not have standing to pursue those complaint items because only the strata company (Strata Company) under the Strata Scheme has standing to do this. 11 Under s 47 of the SAT Act the Tribunal has the power to order that a proceeding be dismissed or struck out. The power to dismiss a proceeding contemplates the denial of any further hearing of that proceeding in the Tribunal. The power to strike out a proceeding is capable of application to both to the proceeding as a whole or to part/s of the proceeding. There is, therefore, an overlap between the power to strike out the entirety of a proceeding and the power to dismiss a proceeding.4 Because the Builder is seeking that the entirety of the remaining complaint items in the proceeding be dismissed or struck out I am approaching the dismissal application on the basis that the Builder is seeking the dismissal of the proceeding as it now stands and I will use the term 'dismissal' rather than 'strike out'. 12 On 19 September 2025 I made orders listing the dismissal application for hearing on 10 December 2025 (dismissal hearing) and 4 Laurent and Commissioner of Police [2009] WASAT 254 at [25] and [26]. -- 5 of 29 -- [2026] WASAT 67 Page 6 for the parties to file written submissions and affidavits in support of those submissions prior to the hearing. 13 The Builder filed written submissions and an affidavit sworn by Mr Pino Anthony Monaco on 8 October 2025 (Monaco October 2025 affidavit) in support of the dismissal application. 14 Ms Mallet then filed written submissions and an affidavit sworn by her on 5 November 2025 (Mallet November 2025 affidavit) in opposition to the dismissal application. 15 The Builder then filed further written submissions in response to Ms Mallet's written submissions. Joinder issue 16 At the commencement of the dismissal hearing on 10 December 2025 I raised an issue about the possibility of the Strata Company being joined as an applicant to the proceeding under s 38 of the SAT Act (joinder issue). 17 At a directions hearing in this matter on 28 August 2025 the legal representative for the respondent indicated that the respondent intended to make the dismissal application and I said that Ms Mallet might consider the Strata Company making an application to be joined as an applicant to the proceeding. 18 The Strata Company did not file an application to be joined to the proceeding, but I noted that under s 38 of the SAT Act the Tribunal may join a person as a party to a proceeding on its own initiative. 19 I adjourned the dismissal hearing for a brief period to enable the legal representatives to confer and obtain instructions about the possibility of the Strata Company being joined as an applicant. 20 After that break the legal representatives both expressed the view that the hearing should continue on the basis that they make their oral submissions regarding the dismissal application and that the dismissal hearing then be adjourned to enable them to file written submissions regarding the joinder issue. The dismissal hearing proceeded on that basis. -- 6 of 29 -- [2026] WASAT 67 Page 7 The dismissal hearing 21 The Monaco October 2025 affidavit was received into evidence marked as exhibit 1 and the Mallet November 2025 affidavit was received into evidence marked as exhibit 2. 22 Counsel for the parties addressed the written submissions which had been filed. 23 I then made orders for the parties to file further submissions addressing the joinder issue and adjourned the dismissal hearing to 6 March 2026. 24 The parties filed their further submissions and the Builder also filed an affidavit sworn by Mr Pino Anthony Monaco on 20 January 2026 (Monaco January 2026 affidavit) 25 At the resumed hearing on 6 March 2026 the Monaco January 2026 affidavit was received into evidence marked as Exhibit 3 and counsel for the parties addressed the further submissions, after which I reserved my decision. Issues to be determined 26 The primary issue for me to determine is whether the proceeding should be dismissed under s 47(2) of the SAT Act because Ms Mallet does not have standing to pursue the remaining complaint items. 27 The secondary issue, which only arises for determination if I decide that Ms Mallet does not have standing to pursue the remaining complaint items, is whether I should exercise the power of the Tribunal under s 38(1) of the SAT Act to join the Strata Company as an applicant to the proceeding. Does Ms Mallet have standing to pursue the remaining complaint items? 28 To answer the question of whether Ms Mallet has standing to pursue the remaining complaint items I need to consider the relevant provisions in the BSCRA Act, the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (BSCRA Regulations) and the ST Act. The relevant provisions in the BSCRA Act and the BSCRA Regulations 29 Section 3(1) of the BSCRA Act provides that 'building service complaint' means a complaint under s 5(1) of the Act. -- 7 of 29 -- [2026] WASAT 67 Page 8 30 Section 5(1) of the BSCRA Act provides: Subject to the regulations, a person may make a complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory. 31 Section 5(5)(a) of the BSCRA Act provides that the regulations may make provision as to who can make a building service complaint. 32 Regulation 5 of BSCRA Regulations provides: A building service complaint about the carrying out of a regulated building service may only be made by a person whose interests are being, or have been, adversely affected by the carrying out of the regulated building service. 33 Section 36(1) of the BSCRA Act provides: 36. Building remedy order (1) A building remedy order consists of one of the following - (a) an order that a person who carried out a regulated building service remedy the building service as specified in the order; (b) an order that a person who carried out a regulated building service pay to an aggrieved person such costs of remedying the building service as the Building Commissioner or State Administrative Tribunal, as the case requires, considers reasonable and specifies in the order; (c) an order that a person who carried out a regulated building service pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work. 34 Section 38(1) of the BSCRA Act provides: 38. How State Administrative Tribunal may deal with building service complaint -- 8 of 29 -- [2026] WASAT 67 Page 9 (1) If the Building Commissioner refers a building service complaint to the State Administrative Tribunal, the Tribunal may - (a) if the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, deal with the building service complaint by making a building remedy order; or (b) otherwise, decline to make a building remedy order. 35 Section 51(1) and (2) of the BSCRA Act provides: 51. Failure to comply with order to do work, new order (1) In this section - responsible adjudicator, in relation to an order, means - (a) if the order was made by the Building Commissioner, the Building Commissioner; and (b) if the order was made by the State Administrative Tribunal, the State Administrative Tribunal. (2) If the responsible adjudicator is satisfied that a building remedy order referred to in section 36(1)(a) to remedy a building service has not been complied with, or has been complied with in part only, by the person to whom it was given by the responsible adjudicator, the responsible adjudicator may - (a) revoke the order in relation to remedying the building service or the part in question; and (b) make a building remedy order referred to in section 36(1)(b) or (c) in relation to that building service. The relevant provisions in the ST Act 36 Section 10 of the ST Act provides that the common property in a strata titles scheme is that part of the parcel of land (which includes -- 9 of 29 -- [2026] WASAT 67 Page 10 buildings) subdivided by the strata titles scheme that does not form part of a lot in the strata titles scheme. 37 Section 13(7)(b) of the ST Act provides that the common property in a strata scheme is owned by the owners of the lots in the strata scheme as tenants in common in shares proportional to the unit entitlements of their respective lots. 38 Section 14 of the ST Act provides that: • On the registration of a strata titles scheme a strata company is established for the strata titles scheme: s 14(1). • A strata company is a body corporate with perpetual succession, capable of suing and being sued in its own name, which has all the powers of a natural person that are capable of being exercised by a body corporate: s 14(5). • The governing body of a strata company is the council of the strata company: s 14(6) 39 Section 91 of the ST Act provides: 91. General duty (1) A strata company must - [(a) deleted] (b) control and manage the common property for the benefit of all the owners of lots; and (c) keep in good and serviceable repair, properly maintain and, if necessary, renew and replace - (i) the common property, including the fittings, fixtures and lifts used in connection with the common property; and (ii) any personal property owned by the strata company, and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause. [(d)-(k) deleted] -- 10 of 29 -- [2026] WASAT 67 Page 11 40 Section 100(1)(a) of the ST Act provides that a strata company must establish an administrative fund for the payment of the expenses of controlling and managing the common property, the payment of insurance premiums and the discharge of any other obligations of the strata company. 41 Section 100(2)(a) of the ST Act provides that if a strata company is a 'designated strata company' it must establish a reserve fund for the purpose of accumulating funds to meet major expenses of the strata company likely to arise in the future. 42 Section 100(2A) of the ST Act provides that a 'designated strata company' must ensure that there is a 10 year plan that sets out the common property of the strata company that is anticipated to require maintenance, repair renewal or replacement (other than of a routine nature) in the period covered by the plan and the estimated costs for the maintenance, repairs, renewal or replacement. The 10 year plan must be revised at least once in each 5 years and extended to cover the 10 years following the revision. 43 Section 100(7) of the ST Act provides that a strata company for a scheme with 10 lots or more is a 'designated strata company'. 44 Section 103(1) of the ST Act provides: 103. Strata company is representative of owners in proceedings (1) If the owners of the lots in a strata titles scheme are jointly entitled to take proceedings against a person or are liable to have proceedings relating to common property taken against them jointly, the proceedings may be taken by or against the strata company and any judgment or order given or made in favour of or against the strata company in the proceedings has effect as if it were a judgment or order given or made in favour of or against the owners. The Builder's submissions in support of the dismissal application 45 The Builder makes the following submissions in support of its grounds for the dismissal application.5 46 The Builder submits that on the creation of the Strata Scheme by the registration of the Strata Plan on 24 November 2020 the control, 5 The grounds are set out in [10] of these reasons. -- 11 of 29 -- [2026] WASAT 67 Page 12 management and the responsibility to repair and maintain and insure the Common Property became the statutory obligation of the Strata Company. The Builder refers to s 91(1) of the ST Act and my decision in Leeming and Proud Holdings Pty Ltd [2021] WASAT 12 (Leeming) at [29] - [53] in support of that submission. 47 The Builder submits that the powers of a strata company to control and manage common property under s 91(1) of the ST Act are exclusive powers to the exclusion of lot owners and refers to The Owners of 875 Wellington Street, Strata Plan 13599 and Kamil Also Known As Ahmed Kamil [2025] WASAT 19 at [221] in support of that submission. 48 The Builder acknowledges that s 5(1) and s 5(5) of the BSCRA Act and reg 5 of the BSCRA Regulations might suggest that the interest in common property held by an owner of a lot in a strata scheme is sufficient to confer a right to make a building service complaint in relation to building works on the common property. 49 However, the Builder submits that this sets up a potential conflict with s 91(1) of the ST Act which suggests that only a strata company has that right, given its exclusive powers to manage and control common property. 50 The Builder submits that this conflict should be resolved as a matter of harmonious statutory construction in the manner set out in Leeming, with the result that only the strata company of a strata scheme can make a building service complaint under s 5(1) of the BSCRA Act concerning common property in the strata scheme. 51 The Builder refers to the principles relevant to the determination of an application for the dismissal of a proceeding under s 47 of the SAT Act set out by Senior Member M Evans-Bonner in Aderemi and TAFE International WA [2024] WASAT 141 (Aderemi) at [48] as follows: 48 From my reading of the case law, including Ellis and Laurent, the principles relevant to this s 47 dismissal application that I must be mindful of include the following: (a) The Tribunal does not have formal pleadings because it is not a court of record. The informality of the Tribunal's procedures is set out in s 32(2)(b) of the SAT Act which provides that 'the Tribunal … is to act according to equity, good conscience and the -- 12 of 29 -- [2026] WASAT 67 Page 13 substantial merits of the case without regard to technicalities and legal forms'. Thus, although the power to dismiss a proceeding at an interlocutory stage is analogous to the power of a court to summarily dismiss a proceeding where the pleadings fail to disclose any reasonable cause of action, caution should be exercised in dismissing a proceeding in the Tribunal before the substantive hearing. That is particularly so when a party is self-represented and does not have the benefit of legal representation or training which would enable them to precisely set out their claim in writing. (b) When considering whether a proceeding should be dismissed, the Tribunal should assume that all the factual assertions made by the applicant would be made out at a final hearing, and consider whether the proceeding is frivolous, vexatious, misconceived or lacking in substance from that perspective. If there are any questions of fact to be determined, or if factual issues may be affected by evidence in possession of a party that has not yet been filed, it may not be appropriate to dismiss the proceeding under s 47 of the SAT Act at an interlocutory stage. (c) The decision to dismiss should only be made after very careful consideration, and in circumstances where it is evident that the applicant has no reasonable prospect of success in the proceeding. To allow a proceeding to continue when it is evident the applicant has no reasonable prospects of succeeding at a substantive hearing would create a substantial prejudice to the respondent. 52 The Builder also refers to the statement by Deputy President Judge Chaney (as he then was) in Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 (Ambrus) at [8] that the principle to be applied in considering an application for a proceeding to be dismissed under s 47 of the SAT Act on the grounds that it is misconceived or lacking in substance is as follows. It should be demonstrated that it is so obviously untenable that it cannot possibly succeed or is manifestly groundless or that it discloses a case which the Tribunal is satisfied cannot succeed. 53 The Builder refers to the following statements by Vaughan J (as he then was) in Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 (Gates) at [30] - [33] on the meaning of the terms 'frivolous' and 'vexatious': -- 13 of 29 -- [2026] WASAT 67 Page 14 30 In the context of an application to strike out a claim or pleading the terms 'frivolous' and 'vexatious' have often been used interchangeably. For example, an action is frivolous if it is obviously (or plainly) unsustainable and an abuse of the process of the court. It may for the same reason be categorised as vexatious. 31 An action is frivolous when it is not worthy of serious consideration, is insupportable in law, discloses no cause of action or is groundless. So too a matter that is without substance or is fanciful is frivolous. The term is apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possibly succeed or in which there is no serious question to be tried. An action is vexatious if it has no reasonable prospects of success. The term has also been said to be apt to describe an action which is a sham and which cannot possibly succeed. 32 Apart from the hopeless case - those that are obviously untenable or manifestly groundless - an action may be vexatious due to the motive of the litigant. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. So too proceedings are vexatious if they are brought for collateral purposes. 33 A proceeding will also be vexatious if it is productive of serious and unjustified trouble and harassment. (footnotes omitted). 54 The Builder also refers to the statement of Deputy President Judge Pritchard (as she then was) in Laurent and Commissioner of Police [2009] WASAT 254 (Laurent) at [51] that the term 'misconceived' connotes a misunderstanding of legal principle while the term 'lacking in substance' connotes an untenable proposition of law or fact. 55 The Builder submits that the proceeding with respect to the remaining complaint items is frivolous and vexatious (on the ground that it is plainly unsustainable with no reasonable prospect of success), misconceived and an abuse of process and should be dismissed pursuant to s 47 of the SAT Act. Ms Mallet's submissions in opposition to the dismissal application 56 Ms Mallet makes the following submissions in opposition to the dismissal application. -- 14 of 29 -- [2026] WASAT 67 Page 15 57 Ms Mallet submits that she was the owner of the Land before the Strata Scheme was created and she now owns each lot in the Strata Scheme and all the Common Property, and at all times she was and is 'the guiding mind and relevant and only decision maker in connection with [the Strata Plan]'. 58 Ms Mallet points out that s 103(1) of the ST Act is a facilitative, not mandatory provision. It provides that a strata company may take proceedings on behalf of the owners of the lots in a strata scheme but does not provide that the proceedings must be taken by the strata company. 59 Ms Mallet submits that since she owns all the Lots, so owns all the Common Property, there is no need to join the Strata Company to this proceeding, because it does not own the Common Property, but merely manages and controls it on behalf of Ms Mallet as the owner of all the Lots. 60 Ms Mallet submits that, given her ownership of all the Lots and the Common Property it would be egregious to suggest that she is unable to enforce her rights under the ST Act and this surely cannot be what the ST Act contemplates. 61 Ms Mallet points out that in Leeming, Mr and Mrs Leeming held 9.7 % of the unit entitlements for their strata scheme and the concerns set out at [46] - [49] in Leeming if an owner of a lot in a strata scheme were able to make a building service complaint regarding common property are absent in this proceeding because Ms Mallet owns 100 % of the unit entitlement in the Strata Scheme and the Common Property. 62 Ms Mallet does not contend that the decision in Leeming was wrong. She contends that it does not apply in her situation because she is the sole owner of the Lots and the Common Property and there is, therefore, no one else who could be a potential complainant regarding the remaining complaint items. 63 Ms Mallet agrees that the principles applicable to a dismissal application under s 47 of the SAT Act are those referred to by the Builder in [51] - [54] above. 64 Ms Mallet refers to the statement of Deputy President Judge Chaney (as he then was) in Ambrus at [44] that the decision to dismiss an application as lacking in substance is one that should only be taken -- 15 of 29 -- [2026] WASAT 67 Page 16 after very careful consideration of the case and where it is clear that there is no realistic prospect of success of an application. 65 Ms Mallet also refers to the following statements of Deputy President Judge Pritchard (as she then was) in Laurent at [18] - [20]: 18 The power in s 47 of the SAT Act has been exercised infrequently by the Tribunal. That is not surprising. The Tribunal is not bound by the practices or procedures applicable to courts of record, and it is required to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms: s 32(2) of the SAT Act. Consistent with the informality of the Tribunal's procedures, proceedings before the Tribunal are not conducted by reference to formal pleadings. In this context, any application to dismiss or strike out a proceeding in the Tribunal should be approached with a great deal of caution. That will be all the more so when the party whose case is the subject of an application under s 47 is self-represented, does not have the benefit of legal representation or legal training, and may have difficulty in precisely setting out their claim in writing. 19 Nothing in s 47 of the SAT Act contains a temporal restriction on when an application under that section may be made or considered. Plainly, an application may be made at an interlocutory stage, but it may also be made in the course of the substantive hearing of a proceeding, for example if at the close of the applicant's case, the state of the evidence is such as to demonstrate that the proceeding is lacking in substance. Given the absence of formal pleadings, the power in s 47 should be exercised particularly cautiously if an application for its exercise is made prior to the substantive hearing of an applicant's case: see Turner and Maunsell Australia Pty Ltd [2006] WASAT 52 (Turner) at [45] - [46] and the cases there cited. 20 When, as in the present case, an application is made at an interlocutory stage, it is appropriate to assume that all of the factual assertions made by an applicant will be made out, and to consider, from that perspective, whether the proceeding is frivolous, vexatious, misconceived, or lacking in substance: Ambrus and Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141 (Ambrus) at [16] (Deputy President Judge Chaney, as he then was). Even then, however, caution should be applied in the exercise of the power in s 47. If there is a serious question of fact to be determined, or if factual issues are likely to be affected by evidence in the possession of a respondent, that factor may render it inappropriate to dismiss the proceeding pursuant to s 47 of the -- 16 of 29 -- [2026] WASAT 67 Page 17 SAT Act. In discrimination cases, it is not uncommonly the case that the evidence led by a respondent and cross-examination of the respondent's witnesses may provide the causative link between the conduct complained of and the ground of discrimination alleged: see Soelberg and Commissioner of Police and Ors [2007] WASAT 214 at [49] (Deputy President Judge Eckert), and Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 at [11]. Is Ms Mallet a person who can pursue a building service complaint concerning the Common Property? 66 In my view, the question of whether Ms Mallet has standing to pursue the remaining complaint items turns on whether she is a person who can make a building service complaint to seek to pursue a building remedy order concerning the Common Property. 67 There is an apparent overlap between the provisions in the BSCRA Act and the BSCRA Regulations on one hand and the provisions in the ST Act on the other hand. 68 Section 5(1) of the BSCRA Act and reg 5 of the BSCRA Regulations appear to allow Ms Mallet as the owner of all the Lots and, therefore, all the Common Property to make and pursue a building service complaint to seek or pursue a building remedy order in respect of the Common Property. 69 However, s 91 of the ST Act appears to provide that it is the Strata Company which must make and pursue a building service complaint in respect of the Common Property. 70 To resolve this overlap, I need to construe the meaning of the phrase 'a person whose interests are being, or have been, adversely affected by the carrying out of the regulated building service' in reg 5 of the BSCRA Regulations. Principles of statutory construction 71 In Leeming at [29] I referred to Mohammadi v Bethune [2018] WASCA 98 (Mohammadi) at [31] - [36] in which the Court of Appeal (WA) outlined the principles of statutory construction as follows: 31 The principles of statutory construction are well known and do not require detailed exposition. Statutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context. -- 17 of 29 -- [2026] WASAT 67 Page 18 Statutory construction, like any process of construction of an instrument, has regard to context. As Kiefel CJ, Nettle and Gordon JJ recently explained in SZTAL: (Below is a quote - amend it to reflect) The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. 32 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. 33 The objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions. 34 Discernment of statutory purpose is particularly significant in cases, commonly encountered, where the constructional choice presented is from 'a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural'. In such a case, the choice 'turns less on linguistic fit than on evaluation of the relevant coherence of the alternatives with identified statutory objects or policies'. As we will explain later in these reasons, we think this is such a case. 35 Thus, the material provisions of the Act must be understood, if possible, as parts of a coherent whole. 36 Statutory texts enacted by the same legislature are to be construed, so far as possible, to operate in harmony and not in conflict.6 Where two or more statutory enactments comprise the 6 Commissioner of Police v Eaton [2013] HCA 2; (2013) 252 CLR 1 [98]. -- 18 of 29 -- [2026] WASAT 67 Page 19 overlapping legislative scheme, the enactments should be construed accordingly, and the court should endeavour to produce a rational, sensible, efficient and just operation in preference to an inefficient, conflicting or unjust operation. (footnotes omitted) Can the owner/s of all the lots in a strata scheme make a building service complaint concerning the common property? 72 In Leeming I decided that the phrase 'a person whose interests are being or have been adversely affected by the carrying out of the regulated building service' in reg 5 of the BSCRA Regulations in the case of a building service complaint about common property in a strata scheme should be construed to mean the strata company of the strata scheme and not an owner of a lot in the strata scheme. Consequently, an owner of a lot in a strata scheme does not have standing to pursue a building service complaint about common property. 73 Ms Mallet contends that the decision in Leeming does not apply to her situation in which she wishes to pursue the remaining complaint items concerning the Common Property because she is the sole owner of all the Lots and the Common Property. 74 Ms Mallet says that she is 'the guiding mind and relevant and only decision maker in connection with [the Strata Plan]'. 75 Ms Mallet also says that the Strata Company does not own the Common Property, but 'merely manages and controls it on behalf of the owner, [Ms Mallet]'. 76 It is not in contention that Ms Mallet owns all the Lots and the Common Property, therefore, Ms Mallet is the sole person who can and must make decisions in respect of the functions of the Strata Company and the council of the Strata Company in accordance with the ST Act and the scheme by-laws of the Strata Scheme. 77 However, it is necessary to consider what the ST Act provides regarding the exercise of the functions of a strata company. -- 19 of 29 -- [2026] WASAT 67 Page 20 78 Section 140 of the ST Act provides for special rules to apply regarding possible exemptions from the 'designated functions' set out in s 140(4) in the case of 2, 3, 4 and 5-lot strata title schemes.7 79 There are no exemptions regarding the functions of a strata company solely because one person owns all the lots in a strata scheme. 80 The intent of s 91 and s 100 of the ST Act is clearly that it is the strata company which is responsible for the control and management of the common property, including the maintenance, renewal or replacement of the common property, and ensuring that there are sufficient funds held by the strata company for that purpose. 81 I accept Ms Mallet's submission that s 103 of the ST Act is facilitative, allowing proceedings to be taken by or against a strata company instead of by or against the owners of all the lots in a strata scheme. 82 However, the requirements of s 91 and s 100 of the ST Act are mandatory. The strata company must control and manage the common property of the strata scheme and must ensure that it holds sufficient funds for this. 83 I note that Ms Mallet is seeking a monetary order against the Builder in respect of the remaining complaint items. 84 In my view, the intent of s 91 and s 100 of the ST Act is clearly that if money is to be received for the remediation of faulty or unsatisfactory building work on the common property of a strata scheme then that money should be paid to the strata company to enable it to ensure that the remediation work is carried out in accordance with the strata company's duties under those sections. 85 Even if a work order is to be made to remedy faulty or defective building work on the common property it is the strata company for the strata scheme which has the power and responsibility to ensure that the remedial work is properly carried out. 86 Section 51 of the BSCRA Act provides that if a work order is not complied with it may be replaced with a monetary order. 7 The designated functions which may be exempted in the case of 2, 3, 4 and 5-lot strata title schemes are the establishment of an administrative fund, the keeping of accounting records, the preparation of statements of account, minutes of meetings, a strata company letterbox and the keeping of a roll by the strata company. -- 20 of 29 -- [2026] WASAT 67 Page 21 87 Counsel for Ms Mallet accepted during the dismissal hearing that if the sole owner of all the lots in a strata scheme can pursue a building service complaint in respect of the common property, it must follow that in the case of a strata scheme where there is more than one owner then all the owners of the lots in the strata scheme can also pursue a building service complaint in respect of the common property. 88 That would mean that if a monetary order were made the owners of the lots would be entitled to receive it jointly and in proportion to their respective unit entitlements. 89 There would be no legal obligation on the part of a sole owner or each of the multiple owners to pay the money received under a payment order to the strata company or even to expend it on remedial works. 90 In my view, the owner or owners of all the lots in a strata scheme cannot circumvent the requirements of the ST Act regarding the performance of the functions of a strata company for a strata scheme or substitute themself or themselves for the strata company in the performance of those functions. 91 To the extent that s 5(1) of the BSCRA Act and reg 5 of the BSCRA Regulations on the one hand and s 91 and s 100 of the ST Act on the other hand overlap regarding the question of who is permitted to make a building service complaint about a regulated building service on common property in a strata scheme, those provisions must be construed, so far as possible, to operate in harmony and not in conflict to produce a rational, sensible, efficient and just operation in preference to an inefficient, conflicting or unjust operation: Mohammadi at [36]. 92 For the reasons I have set out in [77] - [90] above, it would not produce a rational, sensible, efficient and just operation of the BSCRA Act if the phrase 'a person whose interests are being or have been adversely affected by the carrying out of the regulated building service' in reg 5 of the BSCRA regulations in the case of a building service complaint about common property in a strata scheme were to be construed to mean an owner or owners of all the lots in a strata scheme. 93 Applying the principles of statutory construction set out in Mohammadi at [31] - [36] I have decided that the phrase 'a person whose interests are being or have been adversely affected by the carrying out of the regulated building service' in reg 5 of the -- 21 of 29 -- [2026] WASAT 67 Page 22 BSCRA Regulations in the case of a building service complaint about common property in a strata scheme should be construed to mean the strata company of the strata scheme and not an owner or owners of all the lots in the strata scheme. Conclusion regarding whether Ms Mallet has standing to pursue the remaining complaint items 94 For the reasons above, I have decided that Ms Mallet does not have standing to pursue the remaining complaint items. Should I exercise the power under s 38(1) of the SAT Act join the Strata Company as an applicant to the proceeding? 95 Section 38 of the SAT Act provides: 38. Joining person as party to proceeding (1) The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that - (a) the person ought to be bound by, or have the benefit of, a decision of the Tribunal in the proceeding; or (b) the person's interests are affected by the proceeding; or (c) for any other reason it is desirable that the person be joined as a party. 96 In Zimowski and Ideal Homes Pty Ltd [2022] WASAT 82 (Zimowski) at [30] I decided that under s 38(1) of the SAT Act the Tribunal has the power to join additional persons as parties to a proceeding commenced by the referral by the Building Commissioner to the Tribunal of a complaint under s 11(1)(d) of the BSCRA Act. The Builder's submissions on the joinder issue 97 The Builder contends that the Tribunal should not join or substitute the Strata Company as an applicant to the proceeding because the limitation period within which the Strata Company could have made a building service complaint in respect of the Common Property has expired. The Builder submits that in that circumstance the Tribunal does not have the power to join the Strata Company to the proceeding. -- 22 of 29 -- [2026] WASAT 67 Page 23 98 The Builder submits that in this matter, pursuant to s 6(2)(a) of the BSCRA Act and reg 7(a)(ii) of the BSCRA Regulations, the Building Work is taken to be completed when notice of completion of the work is given to the relevant permit authority under s 33(1) of the Building Act 2011 (WA) (Notice of Completion). 99 The Builder says that the Notice of Completion for the Building Work was given to the City of Belmont on 14 November 2019 and refers to the Monaco January 2026 affidavit at paragraph 4 and attachment PAM-1, which is a copy of the BA7 (Notice of Completion) for the Building Work. 100 The Builder says that, as a result, the last date by which a building services complaint could have been made concerning the Building Work was 14 November 2025 which was prior to the time of the filing of the Builder's submissions and the time when this decision will be made. 101 The Builder accepts that the Tribunal has the power under s 38 of the SAT Act to join additional parties to a building service complaint which has been referred to the Tribunal by the Building Commissioner. 102 However, the Builder submits that this power arises only where joinder is made at a time prior to the expiration of the relevant limitation period within which an action by that party could have been brought. 103 The Builder refers to a Victorian building dispute matter concerning a strata scheme in which two owners corporations8 commenced a proceeding in the Victorian Civil and Administrative Tribunal (VCAT) against a builder for alleged defective building work. 104 An application was made to join lot owners whose lots were affected by the alleged defective work as additional applicants. The builder opposed the joinder application on the ground that any claim by the lot owners was statute barred. 105 It was undisputed that at the time the joinder application was made the time for the lot owners to commence a proceeding had expired. 106 VCAT joined the lot owners as applicants under s 60 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) 8 Under the Victorian legislation owners corporations are the equivalent of strata companies in Western Australia. -- 23 of 29 -- [2026] WASAT 67 Page 24 (VCAT Act); see Owners Corporation No.1 PS526704E v Lendlease Engineering Pty Ltd (Building and Property) [2019] VCAT 1909. 107 The builder applied for leave to appeal that decision9 to a single judge in the Supreme Court of Victoria, Forbes J who allowed the appeal; see Lendlease Engineering Pty Ltd v Owners Corporation No.1 & Ors [2021] VSC 338 (Lendlease VSC). 108 The owners corporations then applied for leave to appeal that decision to the Victorian Court of Appeal, which refused leave to appeal; see Lendlease Engineering Pty Ltd v Owners Corporation No 1 PS526704E & Ors [2022] VSCA 105 (Lendlease VSCA). 109 The Builder submits that the decisions in Lendlease VSC and Lendlease VSCA disallowing the joinder of the lot owners as applicants to the VCAT proceeding are not distinguishable from the situation in this proceeding and should be followed. 110 The Builder points out, correctly, that s 60 of the VCAT Act is identical to s 38 of the SAT Act. 111 The Builder also submits that, although the above proceeding was commenced directly in VCAT rather than through the equivalent of the Building Commissioner in Western Australia, that is not a relevant distinction because the time within which the Strata Company could make a complaint to the Building Commissioner concerning the Building Works has passed. Ms Mallet's submissions on the joinder issue 112 Ms Mallet submits that, regarding the limitation issue, the concept of making a new complaint (which Ms Mallet says she understands is the Builder's submission) is not a relevant factor as the complaint already exists. 113 Ms Mallet submits that s 38 of the SAT Act permits a person to be joined to an existing proceeding and that s 38 cannot be understood to mean that the new party commences a new proceeding. 114 Ms Mallet submits that the discretion to exercise the power of the Tribunal under s 38 of the SAT Act to join a person as a party to a proceeding is broad. 9 There was another issue which also went on appeal, but it is not relevant to this proceeding. -- 24 of 29 -- [2026] WASAT 67 Page 25 115 Ms Mallet contends that the decision in Zimowski is inconsistent with the decisions in Lendlease VSC and Lendlease VSCA. 116 Ms Mallet points out that in Zimowski the building work was completed on 19 October 2015, the building service complaint which was referred to the Tribunal by the Building Commissioner was made on 3 May 2021, the 6 year limitation on making a complaint under the BSCRA Act expired on 19 October 2021 and the additional persons were added as applicants on 28 April 2022, which was after the expiry of the limitation period. 117 Ms Mallet points out that in Zimowski I said that there were only two questions to be answered: (1) Does the Tribunal have the power to join additional persons as parties to a building complaint referral proceeding? (first question); and (2) If the first question is answered in the affirmative, should the second and third applicants be joined as parties to the proceedings? (second question). 118 Ms Mallet submits that the 'limitation issue' was not an issue for consideration in Zimowski. 119 Ms Mallet submits that the question of jurisdiction can only arise when a building complaint is made to the Building Commissioner and it would be contrary to the objectives of the Tribunal set out in s 9 of the SAT Act to 'require a significant building complaint to be removed and remade upon the existence of a Strata Company would appear to be a duplication and inefficient use of the resources of SAT'. 120 Ms Mallet submits that if the question is accurately framed as whether the Tribunal appears to have a discretion under s 38 of the SAT Act to add the Strata Company as a party to the proceeding then the limitation period does not apply. And by applying Zimowski, it would be as if the Tribunal had made the order for joinder ab initio or alternatively nunc pro tunc. 121 Ms Mallet contends that the joinder issue begs the question and consideration of: What would the parties and potential party's rights be had stratification not occurred until after the 6 year [BSCRA Act] limitation period had expired? -- 25 of 29 -- [2026] WASAT 67 Page 26 & If this delay in stratification was caused by the builder's defects, surely this would be an application of the prevention principle and the builder would be estopped from reliance on the limitation period? 122 Ms Mallet contends that 'if [the Builder's case on the joinder issue] is accepted and adopted, then in both of these scenarios no party could make a complaint against a builder, which surely cannot be what was intended.' Consideration of the joinder issue 123 It is important to note that the joinder issue has arisen because, at the commencement of the dismissal hearing, I raised the possibility of the Tribunal joining the Strata Company as an applicant to the proceeding under s 38 of the SAT Act, rather than the Strata Company having made an application to be joined as an applicant. 124 I accept the Builder's contention that the Tribunal should not join or substitute the Strata Company as an applicant to the proceeding because the limitation period within which the Strata Company could have made a building service complaint in respect of the Common Property has expired. 125 I accept the Builder's submission that the limitation period expired on 14 November 2025, as calculated in [98] - [100] above. 126 In Lendlease VCA the Victorian Court of Appeal at [109] stated that the addition of a new party when any limitation period applying to the claim by or against that person has expired is not allowed because such an addition would effectively defeat a limitation defence. And at [111] the Court of Appeal stated that s 60 of the VCAT Act (which is identical to s 38 of the SAT Act) does not enable VCAT to join parties to defeat a limitation defence. 127 Since 15 November 2025 the Strata Company has not been able to make a building service complaint in respect of the Common Property and if the Strata Company were to now be joined as an applicant to this proceeding it would defeat the 6 year limitation period imposed by s 6(2)(a) of the BSCRA Act and reg 7(a)(ii) of the BSCRA Regulations. 128 In Zimowski the limitation period issue was not raised. The fact that it was not raised, and therefore not considered, is not a reason to -- 26 of 29 -- [2026] WASAT 67 Page 27 ignore the decision of the Victorian Court of Appeal in Lendlease VCA. 129 If the limitation period for the Strata Company to make a building service complaint to the Building Commissioner in respect of the Common Property had not expired, it would be a relevant consideration in the exercise of the discretion of the Tribunal under s 38 of the SAT Act whether the Strata Company ought to be joined as an applicant in light of the objectives of the Tribunal set out in s 9 of the SAT Act. 130 I do not accept Ms Mallet's contention set out in [122] above regarding the scenarios set out in [121] above. 131 Ms Mallet was the person, who as the owner of the Land and all improvements on it, was entitled to make a building service complaint concerning the entirety of the Building Works. However, when the Strata Scheme and the Strata Company came into existence by the registration of the Strata Plan, the Strata Company should have taken responsibility for the Common Property in accordance with its functions and duties under the ST Act. The Strata Company could have applied to be joined as an applicant to the proceeding under s 38 of the SAT Act with respect to the items of complaint concerning the Common Property and, if unsuccessful with that application or as an alternative, the Strata Company could made a building service complaint to the Building Commissioner concerning those items of complaint. Once the 6 year limitation period expired the Strata Company lost the legal right to take either of those courses of action. 132 Given that the Strata Plan was registered on 24 November 2020, it is unfortunate that the Strata Company did not take action before the limitation period expired on 14 November 2025. Conclusion regarding the joinder issue 133 For the reasons above, I have decided that I cannot exercise the power under s 38(1) of the SAT Act to join the Strata Company as an applicant to the proceeding. Should I dismiss the proceeding under s 47 of the SAT Act? 134 Section 47 of the SAT Act provides: 47. Frivolous etc. proceedings, dismissal of etc. -- 27 of 29 -- [2026] WASAT 67 Page 28 (1) This section applies if the Tribunal believes that a proceeding - (a) is frivolous, vexatious, misconceived or lacking in substance; or (b) is being used for an improper purpose; or (c) is otherwise an abuse of process. (2) If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders. (3) The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member. (4) The Tribunal may act under subsection (2) on the application of a party or on its own initiative. 135 In Gates Vaughan J (as he then was) stated at [30]: 30 In the context of an application to strike out a claim or pleading the terms 'frivolous' and 'vexatious' have often been used interchangeably. For example, an action is frivolous if it is obviously (or plainly) unsustainable and an abuse of the process of the court. It may for the same reason be categorised as vexatious. 136 The proceeding, as it remains, is plainly unsustainable because Ms Mallet does not have standing to pursue the remaining complaint items. 137 Accordingly, the proceeding is frivolous, vexatious and an abuse of process for the purposes of s 47(1)(a) and s 47(1)(c) of the SAT Act and I will make an order that the proceeding be dismissed pursuant to s 47(2) of the SAT Act. 138 I note for the purpose of s 47(3) of the SAT Act that I am a legally qualified member of the Tribunal. Costs 139 I will give each party the opportunity to make an application for costs pursuant to rule 42A of the State Administrative Tribunal Rules 2004 (WA) within 21 days. -- 28 of 29 -- [2026] WASAT 67 Page 29 Orders The Tribunal orders: 1. The proceeding is dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA). 2. Each party has liberty to apply for their costs by filing with the Tribunal and giving to the other party within 21 days of the date of these orders: (a) a schedule of the costs claimed in sufficient detail to enable the Tribunal to fix any costs which might be awarded, together with any supporting documents upon which the party wishes to rely; and (b) written submissions stating the basis upon which it is contended costs should be awarded and the basis upon which the amount of costs claimed is calculated. 3. If a party makes an application for costs under order 2 above, the other party may file with the Tribunal and, if so, must give to the party which has made the application for costs, written submissions and any supporting documents on which the party wishes to rely in opposition to the application for costs within 42 days of the date of these orders. 4. Subject to any further order, after the date referred to in order 3 above, any application for costs is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) and the Tribunal will fix the amount of any costs awarded in the same determination. I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. MR D AITKEN, SENIOR MEMBER 5 JUNE 2026 -- 29 of 29 --