SAJE and THE OWNERS OF 36B THIRD AVENUE, MOUNT LAWLEY STRATA PLAN 21602 [2026] WASAT 52

[2026] WASAT 52 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : STRATA TITLES ACT 1985 (WA) CITATION : SAJE and THE OWNERS OF 36B THIRD AVENUE, MOUNT LAWLEY STRATA PLAN 21602 [2026] WASAT 52 MEMBER : MR E CADE, MEMBER HEARD : 23 DECEMBER 2025 DELIVERED : 14 MAY 2026 FILE NO/S : CC 736 of 2024 BETWEEN : ELIANA SAJE First Applicant LISA SAJE Second Applicant AND THE OWNERS OF 36B THIRD AVENUE, MOUNT LAWLEY STRATA PLAN 21602 Respondent Catchwords: Unauthorised alteration of common property - Agreement in prior proceeding in respect of unauthorised alteration and dismissal of prior proceeding - Exercise of statutory discretion to make orders to resolve dispute - Compensation for pecuniary loss or damage -- 1 of 52 -- [2026] WASAT 52 Page 2 Legislation: State Administrative Tribunal Act 2004 (WA), s 46(1), s 55, s 87 Strata Titles (General) Regulations 2019 (WA) Strata Titles Act 1985 (WA) (after 20 May 2020), s 3, s 11(1), s 19, s 20, s 21Q, s 19(2), s 42(8), s 47(6), s 105, s 197(1)(a)(iii), s 197(1)(a)(iv), s 197(2), s 197(4), s 200(1), s 200(2)(a)(i), s 200(2)(o), s 200(2)(o)(i), s 204(2)(e), Sch 1, Pt II Strata Titles Act 1985 (WA) (prior to 20 May 2020), s 3, s 3AC, s 5D(3), s 11(1), s 11(1)(a)(ii), s 11(2)(b), s 17(1), s 42(2) Strata Titles Amendment Act 2018 (WA) Result: Application dismissed Category: B Representation: Counsel: First Applicant : In Person Second Applicant : By video-link Respondent : In Person Solicitors: First Applicant : N/A Second Applicant : N/A Respondent : N/A Case(s) referred to in decision(s): Bendall-Harris v Aitken [2008] WADC 112 Carr and The Owners of 252 Cosy Corner Road Kronkup Survey-Strata Scheme 55030 [2024] WASAT 132 Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2024] WASAT 25 Giabeni Pty Ltd and The Owners of 30 Coode Street Mount Lawley Strata Plan 11321 [2024] WASAT 105 -- 2 of 52 -- [2026] WASAT 52 Page 3 Hoddinott and Zar [2026] WASAT 25 Kruger v the Commonwealth [1997] HCA 27; 190 CLR 1 Laffin and Renouf [2016] WASAT 48 Minister for Immigration and Citizenship v Li [2013] HCA 18 Saje and Sampson [2023] WASAT 101 Saje and The Owners of 36B Third Avenue, Mt Lawley Strata Plan 21602 [2025] WASAT 61 The Owners of 875 Wellington Street, Strata Plan 13599 and Kamil also known as Ahmed Kamil [2025] WASAT 19 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 -- 3 of 52 -- [2026] WASAT 52 Page 4 REASONS FOR DECISION OF THE TRIBUNAL: Background 1 Eliana Aura Leena Saje (Eliana Saje or the first applicant) with her daughter Lisa Katherine Saje (Lisa Saje or the second applicant) are the owners as joint tenants of lot 3 on Strata Plan 21602 (strata plan). They purchased this lot on 30 May 2018.1 2 The strata plan comprises a two-storey building situated at 36B Third Avenue, Mount Lawley, containing four ground floor residential units (lots 1 to 4) and four first floor residential units (lots 5 to 8) along with common property. 3 Relevant to these proceedings, lots 2 and 3 each consist of four parts: a residence, a front porch adjacent to the residence, a courtyard adjacent to the residence and a separate covered parking space.2 4 On 6 July 2024, the applicants lodged an application under s 197(4) of the Strata Titles Act 1985 (WA) (ST Act), CC 435/2024 (CC 435/24). There are eight respondents to the CC 435/24 proceeding, these being The Owners of 36B Third Avenue, Mt Lawley, Strata Plan 21602 (the strata company) and the owners of Lots (also known as Units or U's) 13, 24, 45, 56, 67, 78 and 8.9 5 On 15 October 2024, the applicants lodged this application under s 197(4) of the ST Act, CC 736/2024 (CC 736/24). There is one respondent to CC 736/24, the strata company. The application is within the original jurisdiction of this Tribunal. 6 These are not, however, the only proceedings the first applicant has commenced in respect of this strata plan. Between March 2022 and February 2024 the first applicant commenced eight other proceedings in respect of the strata plan, these being CC 387/22, CC 549/22, 1 Eliana Saje's co-owner Lisa Saje was not originally a party to either CC 736/2024 or CC 435/2024. However, by order 1 of the Tribunal made on 26 August 2025 she was joined as the second applicant to each of the proceedings. I will therefore refer to Eliana Saje and Lisa Saje in these reasons as, respectively, the first applicant and the second applicant and together as the applicants. 2 Hearing Book (HB), page 6. 3 Wayne Marriot. 4 Harry Bigelman. 5 Danielle Sampson. 6 Peter Phoenix. 7 Robin Leen. 8 Leanne Slater. 9 Christine Bevans. -- 4 of 52 -- [2026] WASAT 52 Page 5 CC 787/22, CC 494/23, CC 1188/23, CC 43/24, CC 99/24 and CC 100/24. The last of these other proceedings was finalised on 4 October 2024. 7 On 30 January 2025, the respondents in CC 435/24 and CC 736/24 lodged interlocutory applications to strike out those proceedings on the basis the grounds in them have been determined in one or more of the other proceedings. 8 On 1 July 2025 I made the following orders in the strike out applications: 1. Pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA), proceeding CC 435/24 is struck out and is at an end in respect of each of the grounds 1, 2, 3, 4, 5, 6, 7 and 8 and proposed orders 1, 2, 3, 4, 5, 6, 7 and 8. 2. Pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA), proceeding CC 736/24 is struck out and is at an end in respect of each of the grounds 1 and 4 and proposed orders 1 and 4. 9 The reasons for these orders were published on 1 July 2025 as Saje and The Owners of 36B Third Avenue, Mt Lawley Strata Plan 21602 [2025] WASAT 61 (Saje 2025). 10 The final hearings in both CC 435/24 and CC 736/24 were then held over two days on 10 November 2025 and 23 December 2025. 11 On the morning of 23 December 2025, I gave the applicants in CC 435/24 leave to withdraw grounds 9 and 10 in that proceeding and these grounds were then withdrawn. There being no other grounds in CC 435/24 I dismissed the proceeding at the close of the hearing on 23 December 2025. Consequently, these reasons will deal only with the submissions and evidence in proceeding CC 736/24. 12 The remaining grounds and orders sought by the applicants in CC 736/24 are grounds and orders sought numbered 2, 3, 5, 6 and 7. As particularised by the applicants on 27 August 2025 their grounds and orders sought are:10 2 Everything that was built is unauthorised. It has serious consequences for the strata company, which means other owners. Relevant sections of the ST-Act: 10 HB, pages 83 - 87. -- 5 of 52 -- [2026] WASAT 52 Page 6 - Division 2 in Part 7 of the ST-Act - S 91(1), (3); s 135 (2); s 137(2); s 141 of the ST-Act; s 83; by-law 4(1) in Sched 1 - Further grounds will be in the SIFC for order 2, which is a submission outside the orders of 18 August 2025. The SIFC of ca. 30 pages will be filed for the final hearing, when orders for filing are made. - Illegal trespass under the Criminal Code Compilation Act WA. The applicant takes this opportunity to demand in writing that Harry Bigelman remove the brick pier he built in Lot 3 courtyard.11 Orders sought: CoO directs Harry Bigelman to remove the extensive structures he built on common property around U2 as well as the conversion of common property into a walk-in pantry and the porch on the driveway side into an indoor living area at U2. 'Around U2' includes all four sides of the courtyard as well as the brick piers Bigelman built in Lot 3. 3 What happened and continues to happen involves severe breaches of various provisions of the ST-Act for Harry Bigelman and the strata company. Relevant sections i.e. grounds under the ST-Act: - Division 3 in Part 5 of the ST-Act - S 91(1), (3); s 135 (2); s 137(2); s 141 of the ST-Act; s 83 - Illegal trespass under the Criminal Code Compilation Act WA - Further grounds will be in the SIFC for order 3, which is a submission outside the orders of 18 August 2025. The SIFC of ca. 20 pages will be filed for the final hearing, when orders for filing are made. The applicant finds it impossible to provide every ground she will rely on at this stage, because she cannot know how the matter is run by the Tribunal or what the respondents will say. It may be an order under s 50 of the SAT-Act will be required, to transfer the proceedings to a court of law for criminal charges. 11 The applicants refer to this structure as a pier. I have referred to it as a pillar. However, for the purpose of this proceeding it makes no difference whether it is a pier or a pillar. -- 6 of 52 -- [2026] WASAT 52 Page 7 Orders sought: CoO and Harry Bigelman to return to U3 the space designed for U3 hot water system and cover all costs involved. May require a Tribunal order under S 50 of the SAT-Act. 5 Bathroom tiles are not common property, and that the insurance provider refused to pay the invoice does not make it strata company's responsibility, yet strata company funds were used for the payment. - This requires a submission, which is outside the orders made. The requirements regarding strata council role, owner rights and responsibilities, allocation for finance and strata manager duties were breached in the matter. Ms Leen has been on the strata council many times. Orders sought: CoO directs the Robin Leen to return to the strata company the cost of the bathroom tiles replacement, which may be $1,203.75. The alleged strata manager in 2023-3024 paid the invoice of the tiles and then pursued to get the money from the insurer, but the insurer refused. The alleged strata manager would not disclose the precise amount, but the invoice will be in the strata company records. 6 This is a hidden insurance matter, orchestrated between Christine Bevans and Zoe Maxwell, to protect Christine Bevans' tenant. The strata company does not deal with tenant issues, and its insurance offers no cover for damage to common property by a tenant. Also, the Act provides for all matters being taken to the strata council, which was breached. The requirements regarding strata council role, owner rights and responsibilities, allocation for finance and strata manager duties were breached in the matter. - This requires a submission, which is outside the orders made. Orders sought: CoO directs Christine Bevans to return to the strata company any amount the insurer paid for the repair of U7 garage door in 2023, and then forward the amount to the insurance company and have the matter deleted from Honan insurance records for SP-21602. 7 The grounds are the strata company's ongoing breaches of its statutory duties and its detrimental effects on Lot 3. Those are a matter of a submission, which is outside the orders made. Orders sought: Compensation in the amount of $50,000. -- 7 of 52 -- [2026] WASAT 52 Page 8 13 In the applicants Statement of Issues, Facts and Contentions lodged on 16 December 2025 the applicants also sought, with respect to ground 2, either of the following orders with respect to ground 2 'as [the Tribunal] sees best':12 a) Order the owner of Lot 2 to remove all alterations to the lot and remove all structures erected by the owner of Lot 2 on common property; or b) Order the owner of Lot 2 to obtain a structural engineers report that confirms the alterations are structurally sound and if they are, to make orders authorising the alterations to the Lot and the structures erected on common property. The final hearing 14 On 10 November 2025, the applicants made oral opening submissions. They made clear in their opening they refused to accept that on 1 July 2025 I had struck out grounds 1 and 4 of the grounds in the proceeding. I then made a direction the applicants are not permitted to adduce evidence or make submissions with respect to grounds 1 and 4. 15 The first applicant gave oral evidence on behalf of the applicants with respect to grounds 2, 3, 5, 6 and 7. During her oral evidence the first applicant referred to a survey of the lot 3 courtyard which she wanted to rely upon but did not wish to tender into evidence. After some discussion on this issue, the first applicant agreed to lodge the survey document with the Tribunal, which was done on 16 November 2025. The first applicant's oral evidence was succinct and was in effect in accordance with the written submissions the applicants lodged on 10 November 2025.13 The first applicant was then cross-examined by a representative of the respondent. 16 The respondent then opened its case by making oral submissions which in substance opposed the orders sought by the applicants. 17 Haim (Harry) Bigelman (the owner of Lot 2) then gave oral evidence for the respondent. Not far into his evidence, however, Mr Bigelman produced and proceeded to refer to a copy of the August - October 1992 edition of the magazine Better Homes and 12 HB pages 281 - 283 and pages 492 - 493. 13 In accordance with the Tribunal's usual practice the documents lodged by the parties, including submissions, were compiled into a paginated hearing book which was admitted into evidence without objection and was marked Exhibit 7 (HB). The HB was later updated to give page numbers to the documents lodged by the parties after the final hearing had ended. -- 8 of 52 -- [2026] WASAT 52 Page 9 Gardens (magazine). Mr Bigelman did this because he said the magazine contained photographs which showed lot 2 as it was in 1992. 18 However, as a copy of the magazine had not been included in the book of documents lodged by the respondents both I and the applicants had difficulty in following the evidence of Mr Bigelman when he spoke about the photographs in the magazine. For this reason, while I did receive the magazine into evidence on the basis it was relevant to the issues in dispute, I adjourned the hearing to a date to be set so as to allow the applicants to consider the newly admitted photographs. I also made a direction that when the hearing resumed the applicants would be permitted to re-open their case so as to deal with any issues raised by the magazine.14 19 At a directions hearing on 26 November 2025 I listed the final hearing to resume on 23 December 2025. By 19 December 2025, however, it became clear that the respondent had lodged documents which contained yet further new evidence and that the applicants objected to this evidence. The new evidence lodged by the respondents is: (1) an agreement said to have been reached between the first applicant and the owner of lot 2 on 14 September 2022 in proceeding CC 549 of 2022 (CC 549/22); and (2) a 'Licence Deed' between the Strata Company and the owner of lot 2 executed on 27 July 2022 which authorised the owner of lot 2 to rest a structure on the common property walls surrounding the lot 2 courtyard. 20 In order to deal with the issues raised by these documents I ordered a directions hearing to be held at 9.30 am on 23 December 2025. After hearing oral submissions from the parties I made the following directions: (1) I would determine the admissibility of the 14 September 2022 agreement at the conclusion of the hearing; and (2) the respondent in CC 736/24 is permitted to adduce into evidence the 'Licence Deed' dated 27 July 2022. 14 ts 74 - 85, 10 November 2025. -- 9 of 52 -- [2026] WASAT 52 Page 10 21 The hearing then re-commenced with the applicants reopening their case which included reliance upon their written submissions lodged on 10 November 2025 and 16 December 2025. 22 The first applicant then gave further oral evidence with respect to grounds 2, 3, 5, 6 and 7. The first applicant was then cross-examined by the respondent. 23 The respondent then reopened its case which included reliance upon the various written submissions and documents it lodged on 24 September 2025 as well as the further documents set out above. Mr Bigelman, Ms Bevans and Ms Leen gave evidence for the respondent. Matters not in dispute 24 Based on the evidence it is not in dispute and I find: (1) The two-storey building set out in the strata plan was built in 1964. (2) The strata plan was registered on 9 August 1991. (3) The strata plan depicts eight lots within the two-storey building. Lots 1 to 4 are on the ground floor and each has a residence, a porch, a courtyard and a parking space. (4) There being no other description in the strata plan, the boundary of each lot is defined by s 3 of the ST Act as it was in 1991. This provides that in the case of a vertical boundary where the base of any wall corresponds substantially with a line in the floor plan, the boundary of the lot is the inner surface of that wall and in the case of similar horizontal boundary it is the upper surface of the floor and the under surface of the ceiling. (5) The strata plan depicts the courtyards of lots 1 to 4 separated by walls which, under s 3 of the ST Act, are common property. (6) Mr Bigelman purchased lot 2 in September 1991. (7) The applicants are the owners as joint tenants of lot 3 having purchased it on 30 May 2018. (8) Relevant to ground 2: in October 1991 and continuing for many years the owner of lot 2 began to alter the structure of both his lot -- 10 of 52 -- [2026] WASAT 52 Page 11 and common property adjacent to his lot. Over time the alterations included: (a) placing a steel and glass roof over the lot 2 courtyard which rested on the walls of the courtyard; (b) placing or extending a brick pillar inside the courtyard of lot 3 at about the midpoint of the wall between the courtyards of lots 2 and 3, for the purpose of supporting the steel and glass roof over his courtyard; (c) placing a lattice screen in a gap in the common property courtyard wall situated between the courtyards of lots 2 and 3; (d) constructing a covered entrance at the front porch of lot 2; and (e) constructing an enclosed pantry out of the rear entrance passage to the courtyard of lot 2. (9) Relevant to ground 3: each of the ground floor lots has a utility duct placed at the midpoint of the rear wall of the respective lot. Relevant to this matter, the utility duct which services lot 3 is only accessible via the lot 2 courtyard. Further: (a) In or around 2009 the hot water system which serviced lot 3 was moved and placed on to a wall in the courtyard of lot 3. (b) In or around 2025 the hot water system servicing lot 3 malfunctioned and needed to be replaced. The applicants applied to the strata company to place a hot water system in the utility duct which services lot 3. The owner of lot 2 objected to the request and the strata company refused the request. The applicants then placed their new hot water system in the courtyard of lot 3. 25 However, certain other matters are in dispute between the parties. These are: (a) Relevant to ground 2: While the parties accept the strata company and council has given approval to the owner of lot 2 to make certain alterations to common property they are in dispute as to -- 11 of 52 -- [2026] WASAT 52 Page 12 whether these resolutions meet the requirements imposed from time to time by the ST Act. (b) Relevant to ground 3: First, whether prior to 2009 the hot water system which services lot 3 was situated in the utility duct which services lot 3 or whether it was placed on a wall of the courtyard of lot 2. Second, whether the utility duct which services lot 3 is part of that lot or whether it is common property. (c) Relevant to ground 5: Whether the strata company was required to compensate the owner of lot 6 for the work of replacing tiles on the wall of the shower of that lot. (d) Relevant to ground 6: Whether the lot 7 garage roller door is common property or the private property of the owner of lot 7. (e) Relevant to ground 7: Whether the applicants' claim for compensation is permitted under s 200(2)(o) of the ST Act. The applicants' contentions 26 I have not been helped by the witness statements and affidavit lodged by the applicants as they contain evidence which is not related to any matter in issue in this proceeding. As a consequence, I have not had regard to: (a) the witness statement of the first applicant dated 18 July 2025; (b) the witness statement of the first applicant dated 28 July 2025; and (c) the affidavit of the first applicant sworn 5 August 2025. 27 The applicants' contentions are set out in their many written submissions, the documents on which they rely and the oral evidence of the first applicant. They are most comprehensively set out in the applicants' SIFC lodged on 16 December 2025. On my best understanding of this document the applicants' contentions are: (a) With respect to ground 2: None of the resolutions which the respondent says authorise the owner of lot 2 to alter common property meet the requirements under the ST Act. This is because they are either not unanimous resolutions or resolutions without dissent, as required from time to time under the ST Act, or because the ST Act is silent as to how a strata company may -- 12 of 52 -- [2026] WASAT 52 Page 13 authorise a lot owner to alter common property with the consequence, they say, that lot owners are not permitted under the ST Act to alter common property at all. As well, the court yard walls are not capable of supporting the weight of the glass and steel structure, indeed, the applicants say that cracks are visible on one or more of the courtyard walls on which the structure rests.15 Further, the licence deed dated 27 July 2022 purporting to grant the owner of lot 2 a licence to rest a steel and glass structure (the courtyard roof) on the walls of the courtyard of lot 2 is a 'dishonest fabrication'.16 (b) With respect to ground 3: Until 2009 the hot water system which services lot 3 was placed inside the utility duct which services lot 3. The applicants say that either because the hot water system was placed in the relevant utility duct at the date of registration of the strata plan or because the relevant utility duct is the property of lot 3 the applicants now have the right to place their hot water system in the utility duct which services lot 3.17 (c) With respect to ground 5: Under s 3 of the ST Act the boundaries of lot 6 are the inner surfaces of the lot, that is, behind the tiles in the shower. The tiles in the bathroom of lot 6 are, therefore, the property and responsibility of the owner of lot 6. However, the owner of lot 6 has obtained payment from the strata company for tiling work done by her on the bathroom of lot 6 which is either her private property or which is in excess of the few tiles that were damaged when gaining access to a burst water main. This, the applicants say, is just one example of 'the total chaos and disorder and lack of procedure and compliance with the Strata Titles Act in the strata company'.18 (d) With respect to ground 6: The lot 7 garage roller door is the private property of the owner of lot 7 and is not common property. This is because the roller door is not placed along the boundary between the garage and the common property but is located inside the garage of lot 7. Alternatively, there is evidence to show that the owner of lot 5 obtained authorisation 15 HB, page 488. 16 HB, page 476. 17 HB, page 352. 18 ts 21, 23 December 2025. -- 13 of 52 -- [2026] WASAT 52 Page 14 from the strata company to instal a roller door on the garage to her lot which, by inference, shows that all garage doors have been installed by owners and are therefore the private property of each lot owner. Therefore, the claim submitted to the strata company's insurer on the basis the lot 7 roller door was common property was a 'fraudulent' claim as well as 'a painful and sad scam to defraud the strata company of the cost of Ms Bevans' garage door'.19 The owner of lot 7 should therefore be ordered to reimburse the insurance company for the cost of repairing the lot 7 garage roller door. (e) Relevant to ground 7: The applicants claim compensation in the amount of $50,000 due to: (1) the strata company's 'egregious and outrageous conduct' which to an 'objective and reasonable person … is alarming and horrifying'; and (2) compensation will 'give [the applicants] opportunity to get their costs covered and some rest, if only momentarily, from the den of unconvicted criminals' which is the strata company. The respondent's contentions 28 The respondent's contentions are contained in submissions lodged on 24 September 2025 and 17 December 2025.20 In these submissions the respondent contends: Relevant to ground 2: (1) The pantry constructed by the owner of lot 2 in 1991 is an alteration of common property that was approved by a resolution of the strata company in 1991. (2) The enclosure of the front porch constructed by the owner of lot 2 in 1999 is an alteration of common property that was approved by a resolution of the strata company in 1999. (3) The 'pyramidal pergola/canopy' erected by the owner of lot 2 which rests on common property was approved by the council of owners in 2010. 19 ts 21, 23 December 2025. 20 HB, pages 270 - 314 and pages 511 to 517 respectively. -- 14 of 52 -- [2026] WASAT 52 Page 15 (4) The brick pillar erected by the owner of lot 2 in the courtyard of Lot 3 in 2008 was approved by the then owner of lot 3, Kate Flood. It is necessary to support the structure approved by the council of owners in 2010 and by the licence given to the owner of lot 2 in 2022. For these reasons, it is now unfair to the respondent (and to the owner of lot 2) to require the removal of this pillar; and (5) Proceeding CC 549/22 was settled by the owner of lot 2 and the first applicant on 14 September 2022 with an agreement which permitted the brick pillar to remain in the courtyard of lot 3 and the first applicant was then given leave to withdraw the proceeding and it was then dismissed. Consequently, as this ground was settled in a prior proceeding it is unfair to the respondent (and to the owner of lot 2) for the applicants to now seek orders that the brick pillar is removed. Relevant to ground 3 (1) Prior to 2009, the hot water system servicing lot 3 was not situated in the utility duct that services lot 3 but was within a galvanised iron box attached to a wall of the courtyard in lot 2. In 2009, this hot water system was moved to the courtyard of lot 3 with the permission of the then owner of lot 3, Ms Flood. As the location of the hot water system was known to the applicant when she purchased lot 3 in 2018 and because the utility duct is common property and so is not part of lot 3, it is unfair to the respondent (and to the owner of lot 2) to require that the hot water system is now moved to the utility duct which services lot 3. 29 In a second set of submissions also lodged by the respondent on 24 September 2025 the respondent contends: Relevant to ground 5 (1) In May 2023 lot 6 was 'flooded due to a burst pipe in the cavity of the double brick wall of the bathroom'. The double brick wall and plumbing is common property. A plumber and an assessor were engaged to inspect the damage. It was agreed by all parties that the burst water pipe was a common property fault and therefore repairs covered by insurance.21 The work on the burst pipe could only be performed by breaking through the tiles and 21 HB, page 278. -- 15 of 52 -- [2026] WASAT 52 Page 16 wall in the bathroom. However, while the insurance company agreed to pay for the cost of repairing the pipe and the brick wall it declined to pay for the cost of retiling the bathroom wall on the basis the pipe failed due to the strata company's failure to maintain it. The owner of lot 6 then engaged and paid a tiler to source similar (but not identical) tiles and to place those tiles in the bathroom. The council of owners then reimbursed the owner of lot 6 for this cost on the basis that it had been necessary to break the tiles to access the burst common property water pipe. Relevant to ground 6 (1) The strata company holds insurance over the common property. The roller door was in place at the time of registration of the strata plan. The damaged garage roller door is common property. An insurance claim was properly made with respect to the damaged roller door and was, subject to an excess contribution, accepted by the insurer. 30 On 8 December 2025, the respondent lodged a further submission with respect to ground 2, which is that the owner of lot 2 did not move the location of the gate in the rear wall of the lot 2 courtyard. 31 On 17 December 2025, the respondent lodged yet a further submission with respect to ground 2. This submission contends that by way of a licence deed executed on 27 July 2022 the strata company gave to the owner of lot 2 a licence for a term of 20 years ending 31 July 2037 permission to place a structure on common property, the structure being a 'powder coated tubular steel, cathedral-style patio structure'. The common property referred to is the walls surrounding the courtyard of lot 2. 32 Ground 7 was denied by the respondent on the basis the Tribunal has no power to make compensation orders of the kind sought by the applicants. The issues raised in this proceeding (CC 736/24) 33 Proceeding CC 736/24 is commenced under s 197(4) of the ST Act, which is a provision which provides for the resolution by the Tribunal of disputes between scheme participants. -- 16 of 52 -- [2026] WASAT 52 Page 17 34 It is not in dispute in this application that the applicants, as joint owners of lot 3, and the respondent as the strata company are scheme participants within the meaning of s 197(2) of the ST Act. 35 Although not clearly articulated by either party, it appears to me that it is also not in dispute in this application that: (1) With the exception of a by-law deemed to have been passed by the company by order of this Tribunal on 31 October 2024 in CC 43/2024, which is not relevant to any issue in dispute in this proceeding, the company has no by-law which grants to a lot owner exclusive use of common property. (2) Ground 2 is a dispute under s 197(1)(a)(iii) between scheme participants as to an alleged contravention of the ST Act which requires certain preconditions to be fulfilled before a lot owner can alter common property and also s 197(1)(a)(iv) as to a resolution of a strata company or the council of a strata company on the basis that the resolutions purportedly made by the strata company and council authorising the owner of lot 2 to alter common property are not resolutions made in accordance with the ST Act. (3) Ground 3 is a dispute under s 197(1)(a)(iii) between scheme participants as to an alleged contravention of the ST Act which the applicants say grants to the owners of lot 3 the right to place their hot water system in the utility duct which services their lot. (4) Ground 5 and ground 6 are disputes under s 197(1)(a)(iv) of the ST Act. (5) Ground 7 is a claim by the applicants under s 200(2)(o)(i) of the ST Act for the respondent to pay money by of compensation to the applicants for certain losses or damage. 36 The issues raised in this application are therefore: With respect to ground 2: (1) How may a strata company authorise a lot owner to alter common property? (2) Are there resolutions of the strata company and council which purport to authorise the owner of lot 2 to alter common property? -- 17 of 52 -- [2026] WASAT 52 Page 18 (3) Are the resolutions of the strata company and council which purport to authorise the owner of lot 2 to alter common property sufficient under the ST Act to authorise the alterations the owner of lot 2 has made to common property? (4) If the answer to either question 2 or question 3 is in the negative, should the Tribunal exercise the discretion granted to it under s 200(1) to resolve the scheme dispute by making the orders sought by the applicants? With respect to ground 3: (1) Is the utility duct which services lot 3 part of lot 3 or is it common property? (2) Prior to 2009, was the hot water system which services lot 3 placed within the utility duct which services lot 3? (3) If the answer to either question 2 or question 3 is in the positive, should the Tribunal exercise the discretion granted to it under s 200(1) to resolve the scheme dispute by making the orders sought by the applicants? With respect to grounds 5 and 6: (1) What preconditions are imposed by the ST Act before a strata company or council may authorise the payment of monies to the owner of a lot? (2) Are there resolutions of the strata company and council which purport to authorise the payment of monies to the owner of lot 6? (3) Do the resolutions of the strata company and council which purport to authorise the payment of monies to the owner of lot 6 sufficient under the ST Act to authorise the payment of monies to the owner of lot 6? (4) If the answer to either question 2 or question 3 is in the negative, should the Tribunal exercise the distraction granted to it under s 200(1) to resolve the scheme dispute by making the orders sought by the applicants? With respect to ground 7: -- 18 of 52 -- [2026] WASAT 52 Page 19 (1) Have the applicants in this proceeding suffered a pecuniary loss or damage within the meaning of s 200(2)(o) of the ST Act? (2) If the answer to question 1 is in the positive, what preconditions are imposed by s 200(2)(o) of the ST Act on the Tribunal making make an order of compensation? (3) If the applicants meet the preconditions imposed by s 200(2)(o) of the ST Act for the Tribunal to make an order of compensation, what quantum of compensation should it order the respondent to pay to the applicants? Consideration With respect to ground 2: How may a strata company authorise a lot owner to alter common property? 37 I am satisfied the documents lodged by the respondent show the company passed the following resolutions with respect to the alterations to common property made by the owner of Lot 2: (1) At an annual general meeting held on 1 October 1991: 'Resolved that Unit 2 be granted permission to re-align the back door and enclose the rear entry for the purpose of creating a pantry. 22 (2) At an extraordinary general meeting held on 30 January 1992: 'Unit 2 - enclosure of front & rear courtyards - Resolved unanimously that the proprietor of Unit 2 be granted permission to enclose both front and year [sic] courtyards with lattice surround subject to the following conditions'.23 (a) The proposed installation to be in accordance with the building by-laws of the Local Authority, namely the City of Stirling. (b) The Owners of 36B Third Avenue, Mount Lawley, Strata Plan 21602 to be fully indemnified against any kind of damage whatsoever which may be done to the development or to any property under their control and that should damage be incurred by the applicant or his agents, employees, tradesperson, tenants etc, that the 22 HB, page 103. 23 HB, pages 105 - 106. -- 19 of 52 -- [2026] WASAT 52 Page 20 damage will be immediately repaired and made good at the sole expense of the applicant. (c) All costs, fees and charges in respect of the installation will be at the applicants' sole expense. The strata company will be indemnified against any claim of any nature whatsoever from whomsoever which may arise at any time concerning non-payment of monies with respect to the work performed. (d) The installation to be in keeping with the visual aesthetics of the development and that materials used within the existing development be used. (3) At an extraordinary general meeting held on 6 April 1999: 'Unit 2 - Mr Bigelman requested permission to install glass in the opening between the front wall and the floor of the balcony above and enclosing the porch with the existing matching bricks. The meeting approved this work to be carried out at the owner's expense'.24 (4) By letter to the owner of Lot 2 dated 14 December 2010, the council of owners said:25 'Re: Canopy/Gazebo 2/36B Third Avenue Mount Lawley Further to your request to install a shade canopy similar to the existing canopy in the courtyard of apartment 4 and as per your diagrams submitted to the Council of Owners on the 2nd of November I am pleased to advise the Council of Owners has approved the erection of a canopy.' (5) A 'licence deed' by which the strata company, in accordance with s 118 of the ST Act, on 27 July 2022 granted to the owner of lot 2 a licence to rest a steel and glass structure on the walls of the courtyard of lot 2.26 38 The ST Act was the subject of extensive amendment by the Strata Titles Amendment Act 2018 (WA). Those amendments came into effect on 1 May 2020. Proceeding CC 736/24 was commenced after the amendments took effect. As a consequence, the legislation in its amended form applies to these proceedings. However, as the strata 24 HB, page 110. 25 HB, page 111. 26 HB pages 587 - 597. -- 20 of 52 -- [2026] WASAT 52 Page 21 company and council resolutions the subject of these proceedings were made under the legislation prior to the amendments taking effect, it will be necessary to consider the legislation as it applied as at the date of these resolutions. 39 At the date of registration of the strata company on 9 August 1991 the by-laws of the strata scheme did not include a management statement. By default, the by-laws of the scheme are the by-laws in Sch 1 Part II of the ST Act as on 9 August 1991. However, none of these by-laws are relevant to this application. 40 At the date of the general meetings held on 1 October 1991 and 30 January 1992 the ST Act contained the following provisions: (a) Section 3 which relevantly, subject to any contrary intention, defined: 'common property' to mean: (a) so much of the land comprised in a strata plan as from time to time is not comprised in a lot shown on the plan …'. 'unanimous resolution' to mean: (a) a resolution that is passed unanimously at a duly convened general meeting of the strata company - (i) of which at least 14 days' notice specifying the proposed resolution has been given; and (ii) at which all persons entitled to exercise the powers of voting conferred under this Act are present and vote, either personally or by proxy; or (b) a resolution that is passed unanimously at a duly convened general meeting of the strata company by every person entitled to exercise the powers of voting conferred under this Act who is present and votes either personally or by proxy and agreed to, in writing signed by him, within 28 days after the day of the meeting by every other person who was entitled to exercise the powers of voting conferred under this Act at the meeting, or by every person who at the time of his signature was entitled to exercise those powers in place of such other persons; (b) Section 11(1) which provided that: In respect of each lot there shall be implied …. -- 21 of 52 -- [2026] WASAT 52 Page 22 (b) as against the proprietor and to which his lot shall be subject - (i) an easement for the subjacent and lateral support of the common property …'. (c) Section 17(1) which provided that common property shall be held by the owners of lots in shares proportional to the unit entitlements or their respective lots. (d) Section 19(2) which relevantly provides that: Subject to subsection (10), a strata company may, pursuant to a unanimous resolution and where satisfied that all persons concerned have consented in writing to the transfer or lease, execute a transfer or lease of common property …. . (e) Section 42(8) which provided that: a strata company may, with the consent in writing of the proprietor of a lot, pursuant to a unanimous resolution make, under this subsection only and not otherwise, a by-law in respect of that lot conferring on that proprietor the exclusive use and enjoyment of, or special privileges in respect of, the common property or any part of it upon such terms and conditions (including the proper maintaining and keeping in a state of good and serviceable repair of the common property or that part of the common property, as the case may be, … . 41 At the date of the general meeting held on 6 April 1999 and the giving of approval by the council of owners to the owner of lot 2 on 14 December 2010, the ST Act contained the following provisions: (a) Section 3 as to the definition of 'common property' in essentially the same terms as set out above. (b) Section 3AC which is as follows: 3AC. Meaning of 'resolution without dissent' (1) For the purposes of this Act a resolution without dissent is a resolution - (a) passed at a duly convened general meeting of the strata company of which sufficient notice (as defined by section 3C) has been given and at which a sufficient quorum (as so defined) is present; and -- 22 of 52 -- [2026] WASAT 52 Page 23 (b) against which no vote is cast by a person entitled to exercise the powers of voting on the resolution conferred under this Act - (i) voting at the meeting either personally or by proxy; or (ii) voting in accordance with subsection (2). (2) A person entitled to exercise the powers of voting conferred under this Act is also to be taken to vote - (a) in support of a resolution if he signifies in writing served in accordance with subsection (3) that he agrees to the resolution; or (b) against the resolution if he signifies in writing served in accordance with subsection (3) that he disagrees with the resolution, within 28 days after the day of the meeting, whether that writing is signed by the person or by another person who at the time of the signing is entitled to exercise the power of voting in place of that person. (3) The writing referred to in subsection (2) is not effective unless it is served - (a) on the strata company; or (b) where under section 36A or 36B a roll is not maintained by the strata company, on the other proprietors. (c) Section 11(1) in essentially the same terms as s 11 set out above. (d) Section 42(8) in essentially the same terms as set out above except the approval of the strata company is to be expressed as a resolution without dissent. 42 At the date of the date of execution of the 'licence deed' on 27 July 2022 the ST Act contained the following provisions: 26. Long term lease or licence over common property A lease or licence, or lease and licence, to use or occupy the common property or part of the common property, in a strata titles scheme for a term or terms exceeding the period specified in the regulations in aggregate (including any option to extend or renew -- 23 of 52 -- [2026] WASAT 52 Page 24 the term of a lease or licence) is not effective unless it has been approved in writing by the local government of the district in which the parcel is situated.27 87. Structural alteration of lot in strata scheme (1) The owner of a lot in a 2-lot scheme that is a strata scheme must not cause or permit the structural alteration of the lot except with the prior written approval of - (a) the owner of the other lot; and (b) for a leasehold scheme, the owner of the leasehold scheme. (2) The owner of a lot in a strata scheme, other than a 2-lot scheme, must not cause or permit the structural alteration of the lot except - (a) with the prior approval, expressed by resolution without dissent, of the strata company and, for a leasehold scheme, the prior written approval of the owner of the leasehold scheme; or (b) if - (i) the prior written approval to the structural alteration has been given by the owner of each lot in the scheme, and, for a leasehold scheme, the owner of the leasehold scheme; and (ii) all approvals are either unconditional or are subject to the same conditions; and (iii) a copy of each approval is served on the strata company. (3) If an application is made under this section for approval for the structural alteration of a lot, the owner of any other lot in the strata scheme or the owner of the leasehold scheme may refuse to give approval on a ground permitted by subsection (5), but not otherwise. (4) If an application is made to a strata company under this section - 27 The Strata Titles (General) Regulations 2019 (WA) does not specify any limit on the term of the licence -- 24 of 52 -- [2026] WASAT 52 Page 25 (a) notice of the proposed resolution on the application must contain or be accompanied by a statement, in the approved form, of the effect of paragraphs (c) and (d); and (b) if a vote on the resolution is taken at a general meeting, the chairperson must, before the vote is taken, read out the statement referred to in paragraph (a); and (c) the vote for a lot may be cast - (i) against a resolution to approve the application; or (ii) in support of a resolution to refuse approval of the application, on a ground permitted by subsection (5), but not otherwise; and (d) a vote referred to in paragraph (c) is of no effect unless the person casting the vote discloses as a ground for the person's vote 1 or more of the grounds permitted by subsection (5). (5) The grounds on which approval may be refused are - (a) that the carrying out of the proposal will breach the plot ratio restrictions or open space requirements for the lot; or (b) in the case of a lot that is not a vacant lot, that the carrying out of the proposal - (i) will result in a structure that is visible from outside the lot and that is not in keeping with the rest of the development; or (ii) may affect the structural soundness of a building; or (iii) may interfere with a statutory easement; or -- 25 of 52 -- [2026] WASAT 52 Page 26 (c) any other ground specified in the regulations. 117. Limitations on exercise of powers … (2) A strata company must not, except as authorised by resolution without dissent, perform or exercise a function that the regulations allow to be exercised only as authorised by resolution without dissent. With respect to ground 2: Are there resolutions of the strata company and council which purport to authorise the owner of lot 2 to alter common property and if so, are these valid resolutions? 43 It is clear from the above provisions of the various iterations of the ST Act that between the date of registration of the strata scheme on 9 August 1991 and 1995: (1) Section 19(2) of the ST Act 1985 permitted the strata company by unanimous resolution to grant to the owner of lot 2 a lease (which in the context of the ST Act will also include the grant of a licence) for special privileges over common property; and (2) Section 42(8) of the ST Act 1985 permitted the strata company by unanimous resolution to make a by-law granting the owner of lot 2 exclusive use of common property. 44 However, between the date of registration of the strata scheme on 9 August 1991 and 1995 the ST Act is silent as how a strata company may authorise a lot owner to alter common property. The gate in the lot 2 courtyard 45 The applicants complain that the owner of lot 2 has moved the gate on the rear wall of the lot 2 courtyard without any resolution authorising this to be done. They assert that in order to do this the owner of lot 2 would have been required to demolish part of the common property wall on the right side of the wall so as to place the gate there and would then have had to brick up the area of the common property wall on the left side of the wall where the gate had been. Such works would clearly constitute an alteration of this common property wall. 46 The applicants also assert the lot 2 gate must have been moved because if it had not then it would have been placed into a freestanding wall and this is not a permitted method of constructing a wall with a gate. -- 26 of 52 -- [2026] WASAT 52 Page 27 The applicants support their argument by reference to many photographs and several sketches. 47 The applicants in their written submission accept they have no direct knowledge as to whether the gate has been moved as they only bought their lot on 30 May 2018.28 I note here that, while the applicants assert the position of the gate in the rear wall of the courtyard is shown in a plan, that this plan appears to be part of a development proposal and is not a plan which necessarily shows the courtyard wall as it was in fact built. 48 Mr Bigelman, the owner of lot 2, gave evidence that he has not repositioned the gate on the rear wall of the courtyard of lot 2. His evidence is confirmed by Ms Bevans, who has owned lot 7 since 1991, who said the gate on the rear wall of the courtyard of lot 2 is in the same position as it was in when she bought her unit. 49 The only direct evidence I have about the original position of the gate is the oral evidence of Mr Bigelman and Ms Bevans which is to the effect that the gate is still in its original position, that is, the gate has never been moved. I accept the evidence of Mr Bigelman and Ms Bevans on this point. Conversely, I find the applicants explanation as to why the gate must have been moved unconvincing. 50 There is no reason therefore to consider the gate in the lot 2 rear courtyard wall any further in these reasons. The pantry 51 I will now deal with the door in the passageway adjacent to the wall of lot 2, which forms part of a construction the parties have called a pantry. The resolution of the strata company on 9 August 1991 purports to authorise the owner of lot 2 to re-align the back door and enclose the rear entry for the purpose of creating this pantry. The pantry is shown in many photographs but the clearest is the photograph at page 504 of the Hearing Book (HB). The strata plan clearly shows the location where the rear door and pantry are constructed is part of the lot 2 courtyard. 52 I understand from Mr Bigelman's oral evidence that he moved the rear door from the front entrance of a passage, which is part of lot 2, to the far end of the passage so as to be contiguous with the courtyard wall. Mr Bigelman then built a wall which closed the front entrance of 28 HB, pages 479 - 484. -- 27 of 52 -- [2026] WASAT 52 Page 28 the passage so as to create the back wall of the pantry. In my opinion, as this door was originally situated within a common property wall which divided this part of lot 2 from common property, the door was also common property.29 It also appears from Mr Bigelman's evidence that he laid bricks on the short wall which separated the passage from common property and which was therefore common property. All these works clearly constitute the alteration of common property. 53 For completeness, I observe the laying of additional courses of brick on this common property short wall as well as building a wall on a common property boundary amounts to the exclusive use of that common property by the owner of lot 2, and that all other lot owners are thereby permanently deprived of the use of that common property. 54 There are a number of methods by which the strata company might have authorised the owner of lot 2 to alter the common property so as to build the pantry. First, it was open to the company to make by unanimous resolution a by-law granting to the owner of lot 2 the exclusive use and enjoyment of the common property on such terms and conditions as specified in the by-law. Second, it was open to the company under s 19(2) to grant the owner of lot 2 a lease or a licence over the area of common property on such terms and conditions as specified in the lease or licence. 55 The company, however, did not do either of these things. Rather, the company chose at its first annual general meeting held on 1 October 1991 to pass a resolution granting the owner of lot 2 'permission to re-align the back door and enclose the rear entry for the purpose of creating a pantry'. 56 However, as mentioned above and as is observed by the applicants, the ST Act at the time was silent as to how the strata company at 9 August 1991 might authorise a lot owner to alter common property. 57 This Tribunal (differently constituted) has considered this issue as from the date of the 1995 amendments to the ST Act, and found that a strata company may, by resolution without dissent, grant to a lot owner permission to alter common property: Laffin and Renouf [2016] WASAT 48 The Owners of 875 Wellington Street, Strata Plan 13599 29 Section 3 ST Act: 'wall' includes a door, window or other structure dividing a lot from common property or from another lot. -- 28 of 52 -- [2026] WASAT 52 Page 29 and Kamil also known as Ahmed Kamil [2025] WASAT 19 at [248] - [251] and Saje and Sampson [2023] WASAT 101 at [50] - [51]. 58 I have compared the ST Act as it was in 1991 with the ST Act as it was after the 1995 amendments. My comparison shows that those sections of the Act as amended in 1995 which impose a requirement that dealings with common property are to be authorised by a resolution without dissent, being s 19, s 20, s 21Q30 and s 43(8),31 are the same as or very similar to the corresponding sections of the Act as it was in 1991, except that the requirement in 1991 is that dealings with common property are to be authorised by a unanimous resolution and not by a resolution without dissent. In addition, I also note the ST Act as it was in 1991 included s 85. 59 For the same reasons the Tribunal in Laffin and Renouf found that after the 1995 amendments that approval for the alteration of common property requires a resolution by the strata company passed without dissent, I find that the ST Act as it was in 1991 required the approval for the alteration of common property to be given by a strata company by a unanimous resolution. 60 The minutes of the strata company annual general meeting held on 1 October 1991 show the company '[r]esolved that Unit 2 be granted permission to re-align the back door and enclose the rear entry for the purpose of creating a pantry.' 61 However, the minutes of the general meeting held on 9 October 1991 are silent as to whether this resolution was a unanimous resolution or some other form of resolution. The minutes do, however, record that another resolution passed by the company on 1 October 1991 to appoint a chairperson for the meeting was passed by unanimous resolution. Because of the presence in these minutes of the statement the chairperson was appointed by a unanimous resolution and the absence of a similar statement as to the resolution permitting the construction of the pantry, I am not satisfied that the resolution authorising the pantry was a unanimous resolution. Accordingly, I must find the resolution passed on 9 October 1991 permitting the construction of the pantry is not in accordance with the requirements of the ST Act and so is not sufficient to authorise the owner of lot 2 to construct the pantry. 30 Section 21Q in the Act as amended in 1995 is substantially similar to s 42(2) in the Act as at 1991. 31 I understand this reference to s 43(8) ST Act to in fact be a reference to s 42(8). -- 29 of 52 -- [2026] WASAT 52 Page 30 The porch 62 As discussed above, the ST Act between 1999 and 2010 is silent as to how a strata company may authorise a lot owner to alter common property. For the reasons given above in Laffin and Renouf I am satisfied that the ST Act between 1999 and 2010 does permit the strata company to authorise a lot owner to alter common property provided the authorisation is by way of a resolution of the company passed without dissent. 63 The minutes of the extraordinary general meeting held on 6 April 1999 record that the strata company passed the following resolution: 'Unit 2 - Mr Bigelman requested permission to install glass in the opening between the front wall and the floor of the balcony above and enclosing the porch with the existing matching bricks. The meeting approved this work to be carried out at the owner's expense'. 64 My examination of the strata plan shows that the front porch of lot 2 is part of lot 2 and I am satisfied the front wall referred in the minutes is a wall that divides the front porch from common property, and so is therefore common property. As the work of enclosing the front porch of lot 2 would involve laying several courses of brick on a common property wall, these works are an alteration of common property and so for the reasons given above the authorising resolution must be passed by the company as a resolution without dissent. 65 The minutes of 6 April 1999 are, however, also silent as to whether this resolution was passed without dissent. The minutes do, however, like the minutes of 9 October 1991, record that a resolution passed by the company on 6 April 1999 to appoint a Chairperson for the meeting was passed by unanimous resolution, which for this purpose is equivalent to a resolution without dissent. For the reasons given above with respect to the minutes dated 9 October 1991, I am not satisfied the resolution passed on 6 April 1991 is in accordance with the requirements of the ST Act and so I find it is not sufficient to authorise the owner of lot 2 to enclose his front porch. The lattice 66 The minutes of the extraordinary general meeting held on 30 January 1992 record the company resolved that: '[u]nit 2 - enclosure of front & rear courtyards - Resolved unanimously that the proprietor of Unit 2 be granted permission to enclose both front and year [sic] courtyards with lattice surround subject to the conditions. -- 30 of 52 -- [2026] WASAT 52 Page 31 67 As the enclosure of the lattice in the common property walls of the courtyard to lot 2 involved the alteration of common property, the works to install the lattices is required to be a unanimous resolution. By its own terms the 30 January 1992 resolution is clearly such a resolution and it therefore did authorise the installation of the lattices. It is therefore not necessary to consider the issue of the lattice any further in these reasons. The steel and glass roof 68 On 14 December 2010 the council of owners gave written approval to the owner of lot 2 to install a 'shade canopy' over the lot 2 courtyard: 'Re: Canopy/Gazebo 2/36B Third Avenue Mount Lawley Further to your request to install a shade canopy similar to the existing canopy in the courtyard of apartment 4 and as per your diagrams submitted to the Council of Owners on the 2nd of November I am pleased to advise the Council of Owners has approved the erection of a canopy.' 69 It is not in dispute in this proceeding that this canopy is the steel and glass roof which is now in place over the lot 2 courtyard, and that it rests on the common property walls which surround the lot 2 courtyard. However, the letter of the council of owners dated 14 December 2010 is clearly not a resolution of the company passed without dissent and so it is not sufficient to authorise the owner of lot 2 to alter common property by resting a steel and glass roof on the courtyard wall. 70 Very late in this proceeding the respondent put into evidence a 'Licence Deed' between the Strata Company and the owner of lot 2 executed on 27 July 2022 which authorises the owner of lot 2 to rest a structure (the glass roof) on the common property walls surrounding the lot 2 courtyard. This licence has affixed to it the common seal of the strata company, the signatures of two council members and the signature of the owner of lot 2.32 71 As at 27 July 2022, the ST Act permitted a strata company to grant to a lot owner a licence to erect, alter or extend a structure on common property provided the licence is authorised by a resolution of the company passed without dissent to execute such a lease. The glass roof is clearly a structure which rests on the lot 2 common property courtyard wall and which in doing so alters the common property wall, and so the 32 HB, pages 596 - 597. -- 31 of 52 -- [2026] WASAT 52 Page 32 licence approving the glass roof must be authorised by a resolution of the company passed without dissent. 72 The difficulty with this licence is that the respondent has not provided the Tribunal with the minutes of any company meeting that shows the company passed a resolution without dissent authorising the council to enter into a lease with the owner of lot 2 to alter the common property walls surrounding the courtyard of lot 2. As such a resolution is a precondition to the execution of such a lease by the council this failure to prove the resolution means that I am not satisfied that this lease is sufficient under the ST Act to authorise the owner of lot 2 to install the steel and glass roof which now rests on the common property walls of the lot 2 courtyard. The brick pillar in lot 3 73 Turing now to the brick pillar erected in the courtyard of lot 3. The applicant contends the owner of lot 2 is not permitted to build a structure within the boundary of lot 3 and the Tribunal should order the removal of the pillar. 74 The applicants say a developer's floor plan 'from March 1991' does not depict a brick pillar on the wall between the courtyard of lots 2 and 3 and so the pillar must have been built in its entirety by the owner of lot 2. They say this is because the courtyard wall between lot 2 and lot 3 is depicted on the plan as a straight line, which they contrast with the wall of a building labelled 'New Carports' which contains four dots which they say depict brick pillars. The applicants also point to differences in the type of brick used for the wall and the brick used for the pillar. As in other matters, the applicants accept they have no direct knowledge as to the courtyard wall in 1991. 75 The respondent does not dispute that the owner of lot 2 built part of this pillar, that it is adjacent to the common property wall which separates the courtyards of lots 2 and 3 and that its function is to support the glass roof which rests on this common property wall. The respondent contends, therefore, that this pillar should not be removed as it is an extension of an existing pillar which provides support for the common property courtyard wall as well as for the steel and glass roof, that it was built with the approval of the then owner of lot 3 and that the applicants on 14 September 2022 entered into an agreement with the owner of lot 2 to allow the pillar to remain on their property. -- 32 of 52 -- [2026] WASAT 52 Page 33 76 The respondent refers to photographs which they say show that a pillar was part of the common property wall in 1992 and Mr Bigelman gave evidence a brick pillar was in existence at the time he bought lot 2 in 1991. 77 The first question I must decide about the brick pillar is whether it forms part of the common property wall which existed at registration of the strata plan. I have carefully considered the applicants' arguments that the brick pillar has been built in its entirety by the owner of lot 2 in about 2009 but I do not find their arguments convincing. First, I have carefully examined the floor plan at page 333 of the HB and I am satisfied that this plan is no more than a high-level sketch which depicts the boundary lines of the lots on the proposed strata plan. I am not persuaded this sketch is intended to convey any structural details such as the presence or absence of a pillar on a wall. I am certainly not able to reach any conclusion about what the four dots on the boundaries of the 'New Carports' part of the plan mean. Second, in the absence of expert evidence I am not able to conclude that because the brick used to form the courtyard wall is different to the brick used for the pillar that this means the wall and pillar were built at different times. Third, the photograph at page 334 of the HB which the respondent says was taken in 1992 does show a pillar consisting of a single course of bricks one long brick wide on the bottom half and about two short bricks wide on the top half adjacent to the courtyard wall. Fourth, I accept the oral evidence given of Mr Bigelman that some form of the pillar was in existence at the time he bought his unit. Fifth, the best photograph of the current state of the pillar is in a photograph said to be taken in 2018 which is at page 165 of the HB. This shows the pillar as at 2018 comprising one course of bricks composed of two long bricks wide on the bottom half of the pillar and about four short bricks wide on the top half. 78 For these reasons I find that a brick pillar consisting of a single course of bricks one long brick wide on the bottom half and about two short bricks wide on the top half was in existence on registration of the strata plan and is common property. I am also satisfied that the function of this pillar is to provide support for the common property wall.33 I am also satisfied that the work performed by the owner in lot 2 was in effect to build another very similar pillar alongside the original pillar, that is, to double the width of the pillar by using bricks which matched the original pillar in colour and size. It also appears to me from examining 33 As the original part of the pillar provides support for the common property wall on which it is adjacent to it is the subject of an easement for the support of common property under s 61(4)(b)(ii) of the ST Act. -- 33 of 52 -- [2026] WASAT 52 Page 34 the photographs that the pillar constructed by the owner of lot 2 is bonded to the original pillar and to the common property wall by mortar. I therefore find that the pillar built by the owner of lot 2 is not only within the boundary of lot 3 but is an alteration of the common property pillar and wall of the courtyard. 79 I turn now to consider whether the pillar built by the owner of lot 2 within the boundary of lot 3 was built with the permission of the previous owner of lot 3, Ms Flood, in 2008. While noting that Ms Flood was not called to give evidence, I was referred by the respondent to an email said to be from Ms Flood to Mr Bigelman dated 10 December 2021 which says: Dear Harry, I clearly recall our phone conversation back in 2008 when as the owner of Unit 3/36B Third Ave Mt Lawley you sought permission to reconfigure the middle pier of our adjoining wall and to brick up the other end to the width and height of the upper walkway adjacent to my kitchen window. At the time I fully agreed verbally for those necessary structures to be installed that adjoined our dividing courtyard wall. I trust you are well, Wishing you a happy Xmas and a prosperous New Year. Best regards, Kate Flood 80 Mr Bigelman gave evidence he had received this email from Ms Flood. 81 After considering the matter, I accept this email as evidence that Ms Flood did give consent to the owner of lot 2 to build the brick pillar in her courtyard in 2008. This is both because I accept Mr Bigelman's oral evidence but also because the building of this pillar could hardly be performed without the knowledge of the occupant of lot 3 and, even if built without her knowledge, it could hardly remain there without being noticed. I therefore find that a brick pillar was built within the boundary of lot 3 by the owner of lot 2 with the consent of the then owner of lot 3. The complaint the applicants therefore now have about the existence of the part of the pillar built by the owner of lot 2 might therefore better be directed to the person who sold them their lot (who is not Ms Flood). -- 34 of 52 -- [2026] WASAT 52 Page 35 82 However, my consideration of the pillar does not end here. As I have found that the part of the pillar built by the owner of lot 2 is bonded to the common property pillar and wall, this part of the pillar constitutes an alteration of common property which is not authorised by a resolution of the company passed without dissent as required by the ST Act as at 2009. Conclusion 83 In conclusion, due to the absence of the authorising resolutions required by the ST Act, my discretion under s 200(1) of the ST Act to make orders to resolve the dispute between the applicant and the respondent is enlivened as to the following items within ground 2: (a) the pantry; (b) the enclosed front porch; (c) the brick pillar bonded to the common property wall separating the courtyards of lots 2 and 3; and (d) the steel and glass roof above the lot 2 courtyard which rests on common property. 84 I will now consider whether, in the exercise of the discretion conferred on me by s 200(1) of the ST Act, I should make the orders sought by the applicants with respect to the above items within ground 2. The Tribunal's discretionary powers to resolve this dispute between the applicants and the respondent 85 Section 200(1) of the ST Act gives the Tribunal power to make orders to resolve a scheme dispute. This power is a statutory discretionary power. The principles which guide the exercise of this discretionary power have been stated by Member Petrucci in Hoddinott and Zar [2026] WASAT 25 [Hoddinott]: 147 The starting point in considering discretionary powers is to consider the term 'discretion'. It was explained in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [19] that the term 'discretion' refers to: … a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily -- 35 of 52 -- [2026] WASAT 52 Page 36 determinative of the result". Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable … [or] it may be quite narrow[.] 148 The discretion conferred by s 199(3) and s 200(1) of the ST Act to make a declaration or an order is not limited by any mandatory considerations: Carr and The Owners of 252 Cosy Corner Road Kronkup Survey-Strata Scheme 55030 [2024] WASAT 132. However, that does not mean that the statutory power is not without limitation. As stated in Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li) at [23] every statutory discretion, however broad, is constrained by law. 149 Legal reasonableness provides the boundaries within which a decision-maker, such as the Tribunal, has a genuine free discretion: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 and Li at [23]. To determine the boundaries of the statutory discretionary power, regard must be had to the scope, subject matter and purpose of the statutory scheme that creates and confers on the Tribunal a discretion to make an order: Li at [67]. The scope and purpose of the ST Act provides limits on the exercise of the statutory power by the Tribunal. By its long title, the ST Act is to provide for, among other related purposes, for the subdivision of land by strata titles schemes, the creation of strata titles and the governance and operation of strata titles schemes. 150 The Tribunal's statutory discretionary power is subject to the presumption of law that the legislature intends the power to be exercised reasonably Li at [23]. Section 199(3) and s 200(1) of the ST Act are to be construed accordingly. In Kruger v the Commonwealth [1997] HCA 27; 190 CLR 1 at 36 this was emphasised as follows: [W]hen a discretionary power is statutorily confined on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised[.] 151 In exercising the Tribunal's discretionary statutory powers to make an order under s 200(2) of the ST Act, the Tribunal I must ultimately take all considerations in the case into account. This may include in this context the following considerations (not an exhaustive list):34 34 See Bendall-Harris v Aitken [2008] WADC 112; Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2024] WASAT 25; Giabeni Pty Ltd and The Owners of 30 Coode Street Mount Lawley Strata Plan 11321 [2024] WASAT 105. -- 36 of 52 -- [2026] WASAT 52 Page 37 (a) the nature of the scheme dispute; (b) the detriment to any owner and the extent, if any, to which it could be said to derogate from the owner's proprietary rights; (c) the extent of any costs of the owners; (d) the formalisation of longstanding informal arrangements; (e) the creation of certainty between owners and thereby reducing disputes; and (f) whether the order will have any utility. 86 I will now consider the factors identified in Hoddinott when exercising my discretion under s 200(1) of the ST Act whether to make orders to resolve the dispute between the applicant and the respondent with respect to the items I identified above. The nature of these disputes 87 The nature of the four items listed above is said to be that the applicants are in dispute with the company as the company is ignoring its statutory duties under the ST Act through tolerating the unauthorised alteration of common property by the owner of lot 2. For the reasons set out above, I have found that the company did not properly authorise certain alterations to common property but with respect to the four items but I would not go so far as to say the company is ignoring its duties or is tolerating the unauthorised alteration of common property. It is my belief that at the time of the final hearing of this proceeding the company believed that it had complied with its statutory duties under the ST Act as it thought, wrongly as it turns out, that the alterations to common property made by the owner of lot 2 had been properly authorised. The detriment to any owner and the extent, if any, to which it could be said to derogate from the owner's proprietary rights 88 The applicants say the unauthorised alterations of common property made by the owner of lot 2 place the company and lot owners at the risk of financial harm as the strata company's policy of insurance would not provide cover should such an alteration cause damage to the common property or to any person on the scheme. The applicants say that all unauthorised alterations should be identified and remedied either -- 37 of 52 -- [2026] WASAT 52 Page 38 by authorisation by the company in accordance with the ST Act or by removal, and as the company has refused to take either of these steps the applicants have no other option than to seek orders from the Tribunal. 89 In my view, the applicants in doing this are properly protecting their proprietary rights, even if they are not supported by any other owner and even if none of the four items have yet caused any financial harm to the applicants. It is also clear to me that the nature of the unauthorised alterations of common property permanently prevent all other lot owners from enjoying the altered common property. 90 For these reasons, I consider the nature of these disputes to involve issues which do cause detriment to the applicants and which do derogate from their proprietary rights. The extent of any costs of the owners 91 While I have not been shown the company's policy of insurance it seems to me it is accepted by all parties that the company's policy relates only to common property. I am therefore inclined to believe that any insurance policy held by the company is unlikely to extend to unauthorised alterations of the common property. I am also inclined to believe that if the unauthorised alterations ever do cause damage to property or injury to any occupant or visitor that this will likely cause significant financial harm to the company and hence to the applicants. Given the applicants have identified cracks in the common property wall on which the glass roof rests I am satisfied that the risk of financial harm to the applicants is more than merely speculative. The formalisation of longstanding informal arrangements 92 While I accept the applicants are able to bring an application to the Tribunal in respect of the unauthorised alteration of common property even though they predate the purchase of their lot, nonetheless, I also accept that I am able to take into account the fact that the company did pass resolutions purporting to authorise them and that until the applicants raised them as an issue in 2022 in proceeding CC 549/22 that no lot owner had ever objected to the alterations. 93 The time over which the alterations of common property have existed varies. The works on the pantry were completed in about 1992 and so have been in place for some 33 years. The works on the glass roof erected in the courtyard of lot 2 appear to have been at least partially completed since 1992 although it seems it may have been substantially -- 38 of 52 -- [2026] WASAT 52 Page 39 altered in about 2008 with the result that in some early form it has been in place for some 33 years and in its final form it has been in place for at least some 17 years. The works enclosing the front porch were completed in about 1999 and so have been in place for some 26 years. It also seems that some part of the brick pillar in the courtyard of lot 3 was built as part of the common property courtyard wall and that some other part of it was erected or extended with the consent of the then owner in around 2008, perhaps as part of additional works on the glass roof in that year, and so in an early form it has been in place for some 33 years and that in its final form it has been in place for at least some 17 years. 94 The respondent also contends the four disputes in ground 2 (as well as the dispute in ground 3) have been the subject of a previous application to the Tribunal, CC 549/22. Both the applicants and the respondent have referred to this proceeding in their submissions and evidence about an agreement reached between the first applicant and the owner of lot 2 on 14 September 2022 during a mediation conference held at the Tribunal. Following this mediation, the respondents say the first applicant applied to withdraw proceeding CC 549/2022 and the proceeding was then dismissed. 95 CC 549/22 was also referred to by the parties during the interlocutory strike out application as described in Saje 2025. In these reasons, I made the following observations and findings with respect to proceeding CC 549/2022 as it compared with CC 736/2025: 45 On comparing the grounds and proposed orders in these two proceedings it is apparent that grounds 2 and 3 and proposed orders 2 and 3 lodged by Dr Saje in CC 736/24 and grounds 2, 3 and 4 and proposed orders 2, 3 and 4 lodged by her in CC 549/22 all relate to the same structures erected on common property or alterations of common property said to have been made by the owner of Lot 2, comprising: (1) A glass roof enclosing the courtyard of lot 2; (2) A walk-in pantry constructed in the courtyard of lot 2; (3) The enclosure of a porch at the entrance of Lot 2; and (4) The alteration of common property which prevents Dr Saje from installing a hot water heater for Lot 3 in the same place as one that was installed when the Strata Plan commenced. -- 39 of 52 -- [2026] WASAT 52 Page 40 46 However, despite these similarities, the two proceedings do possess some differences. 47 As discussed above at paragraphs [31] to [43] the first difference between the two proceedings is that each is brought by Dr Saje under a different section of the ST Act. 48 The second difference between these two proceedings is that in CC 549/22 Dr Saje's proposed order is that the Tribunal order the owner of Lot 2 to remove certain structures and alterations made to common property and in CC 736/24 it is that the Council of Owners make an application to the Tribunal to require the owner of Lot 2 to remove the structures and alterations made to the common property. 49 After considering these matters I am satisfied and I find that while the grounds and proposed orders lodged by Dr Saje in proceeding CC 736/24 and those she lodged in CC 549/22 deal with the same structures and alterations and potentially seek similar remedies that, for the purpose of my consideration of the strike out applications, they are different grounds and proposed orders. As I explained above at paragraphs [31] to [43] this is because each proceeding is commenced under a different section of the ST Act with the consequence that each is to be decided by very different findings. 50 I am therefore satisfied and I find grounds 2 and 3 and proposed orders 2 and 3 lodged by Dr Saje in CC 736/24 are not grounds and orders sought that have been previously dismissed or finally decided by the dismissal of grounds 2, 3 and 4 and proposed orders 2, 3 and 4 in CC 549/22. That is, I am satisfied and I find that grounds 2 and 3 and proposed orders 2 and 3 in CC 736/24 should not be struck out as an abuse of process. 96 I note here that a ground in CC 549/2022, which it was not necessary to refer to in the strike out reasons, relates to a 'structure' that the owner of lot 2 is alleged to have built in the courtyard of lot 3. It is clear to me from that proceeding that the structure in question is the brick pillar that is the subject of this proceeding. I am therefore satisfied the items referred to in ground 2 and ground 3 in this proceeding are the same items as were raised by the applicants as grounds in CC 549/22. 97 In deciding whether to admit the agreements in CC 549/22 into evidence in this proceeding I must first be satisfied that they are in fact the agreements reached between the first applicant and the owner of lot 2 in that proceeding. Given that the wording of the agreements was referred to by both the first applicant and the respondent in evidence in this proceeding I am so satisfied. I note here that while the second -- 40 of 52 -- [2026] WASAT 52 Page 41 applicant in this proceeding was not formally a party to CC 549/22 it is clear that she did play an active part in that proceeding and she authorised the first applicant to act on her behalf in that proceeding. I am therefore satisfied that any agreement reached by the first applicant in CC 549/22 is binding also on the second applicant in this proceeding. 98 I must then be satisfied that the meaning of the agreement is certain. The applicants say it is not and that what is meant by the 'encroachment' in the agreements is not clear. The respondent in turn says the agreement is clear and that the reference is to the brick pillar in ground 2 in this proceeding. After considering the matter, given that the applicants in their written materials do refer to the brick pillar as an encroachment at page 325 of the HB, I am satisfied that the reference is to the brick pillar. 99 However, before I admit the agreement into evidence I must also be mindful of the restrictions set out in s 55 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). In accordance with that section I accept that anything said or done between parties at a mediation is confidential and is not to be admitted into evidence in a later proceeding unless both parties agree to the admission of the evidence or it is evidence of the reasons for orders made at the mediation. 100 In this proceeding I am satisfied that each party to CC 549/2022 by referring to the agreements has consented to their admission into evidence in this proceeding and I am also satisfied that the agreements are evidence as to why the Tribunal made orders under s 46(1) of the SAT Act on 14 September 2022 to grant the applicant leave to withdraw proceeding CC 549/22 and to then dismiss the proceeding. I have therefore decided to admit the agreements into evidence in this proceeding. 101 It is useful to reproduce the signed agreements between the applicants and the owner of lot 2 in CC 549/2022: -- 41 of 52 -- [2026] WASAT 52 Page 42 -- 42 of 52 -- [2026] WASAT 52 Page 43 102 After careful consideration, I am satisfied these agreements between the first applicant and the owner of lot 2 do constitute an agreement by the first applicant to make a final settlement as to the glass roof enclosing the courtyard of lot 2; a walk-in pantry constructed in the courtyard of lot 2; the enclosure of a porch at the entrance of lot 2; the placement of the lot 3 hot water system in the courtyard of lot 2; the lattice in the courtyard wall that separates lot 2 and lot 3 and as to the construction of a brick pillar in the courtyard of lot 3 and that the agreements are binding on both the first applicant and the second applicant in this proceeding. Whether the orders sought will have any utility 103 In my view the orders sought by the applicants in this proceeding would have utility as they are one means of bringing the dispute between the parties to a final resolution. The creation of certainty between owners and thereby reducing disputes 104 It is clear to me that these four items have caused much disputation between the applicants, the company and the owner of lot 2. It is also clear to me that despite the applicants entering into an agreement on 14 September 2022 with the owner of lot 2 to resolve these four items of dispute that the applicants have resiled from their agreements and have now commenced a further proceeding in order to attempt to obtain a different outcome in respect of the very same disputes. Conclusion with respect to the exercise of my discretion 105 While many of the factors I have considered weigh strongly in favour of the making of orders now sought by the applicants with respect to each of the four disputes in ground 2, I am of the view that I should not make the orders sought. This is because the fact that the applicants and the owner of lot 2 on 14 September 2022 entered into a final settlement of their dispute weighs even more strongly against making the orders the applicants now seek. In my view, it would be unjust to now permit the applicants to put aside their earlier agreements because they now want them to be settled in a different way. It is my belief that requiring the applicants to honour their prior agreements is the best way of creating certainty between the owners in this strata plan and to bring their disputes to finality. -- 43 of 52 -- [2026] WASAT 52 Page 44 With respect to ground 3 106 The minutes of the company's Annual General Meeting held on 15 April 2009 contains the following record: 'Hot water system: Harry Bigelman advised the meeting the problems could be experienced by the resident of unit 3 if he was away when the hot water system of unit 3 needed servicing/repair. He mentioned the hot water system for this unit is in unit 2's courtyard which is secure. The Strata Manager was asked to obtain a quote to move the hot water system from unit 2;'s courtyard to unit 3. The quote to be forwarded to the Council for consideration.' 107 At 15 April 2009, s 5D(3) of the ST Act permitted an express easement to be created through a note on the plan which records the location of the easement, the dominant and servient lots and a specification of the easement. However, this strata plan does not include any note as to an easement with respect to the hot water system which services lot 3. 108 At 15 April 2009, s 11(1)(a)(ii) of the ST Act also included an implied easement in favour of a proprietor as 'appurtenant to his lot' for the passage or provision of, amongst other things, water, gas and electricity, through or by means of pipes and cables.35 Under s 11(2)(b) a proprietor of a lot is not to do or permit anything to be done to interfere with the passage of water, gas and electricity through or by means of any pipes or cable for time being in the proprietor's lot. However, under s 11(1)(a)(ii) of the ST Act, such an implied easement is conditional on those pipes and cables being 'capable of being used in connection with the enjoyment of that lot'. 109 It is clear from the oral evidence of Mr Bigelman that the hot water system was moved to the courtyard of lot 3 sometime in 2009. On the basis of Mr Bigelman's evidence and the email which he produced from Ms Flood I am satisfied this was done with the consent of the then owner of lot 3, Ms Flood. 110 It is my view that upon the movement of the hot water system in 2009 any prior implied easement for the water, gas and electricity pipes and cables which were necessary to the functioning of the hot water system (either in the courtyard of lot 2 or the utility duct which services 35 Under s 19(1) of the ST Act the owner of a lot may dispose of common property which is appurtenant to the lot of the proprietor. -- 44 of 52 -- [2026] WASAT 52 Page 45 lot 3) ceased, and that under s 11(1)(a)(ii) of the ST Act a new implied easement was created in respect of any pipes or cables for the provision of water, gas and electricity that were necessary for the functioning of the hot water system in its new position in the courtyard of lot 3. 111 Therefore, in my view the applicants' claim they now still enjoy an easement for the passage of water, gas and electricity to the location where the hot water system was placed as at 15 April 2009 is not correct. Consequently, the applicants' contention that they can now insist on returning the hot water system to either the courtyard of lot 2 or to the utility duct which services lot 3 and to run water, gas and electricity cables to that hot water system through the courtyard of lot 2 is also not correct. 112 I am also satisfied from my examination of the strata plan that all utility ducts in the scheme are common property, that is, I am satisfied that the utility duct which services lot 3 is not the property of the owners of lot 3. I am also satisfied on the basis of Mr Bigelman's evidence that the hot water system that services lot 3 was not, prior to 2009, placed within the utility duct which services lot 3 but was rather within the courtyard of lot 2. 113 My discretion under s 200(2) of the ST Act to make orders to resolve the dispute between the applicant and the respondent as to the repositioning of the hot water system servicing lot 3 from the courtyard of lot 2 to the courtyard of lot 3 is therefore not enlivened. Consequently, I must dismiss ground 3 of the applicants' application. 114 However, should I be wrong on this point, then with respect to the findings and observations that I made above with respect to the agreement the applicants entered into with the owner of lot 2 on 14 September 2022 I would, due to that agreement, decline to exercise my discretion under s 200(1) of the ST Act to make the orders now sought by the applicants with respect to their hot water system. With respect to ground 5 115 Ms Leen, the owner of lot 6, gave oral evidence that in June 2023 her property manager informed her that water was 'gushing' from the lot 6 bathroom through the kitchen and into the loungeroom. 116 Ms Leen's property manager arranged for an emergency plumber to turn off the water to lot 6. At that time it was not clear whether the source of the water leak was from within the unit, such as from the taps to the -- 45 of 52 -- [2026] WASAT 52 Page 46 shower, or if it was from a pipe in a cavity behind a common property wall. The company's strata manager arranged for its plumber to attend lot 6 and Ms Leen was informed this plumber removed tiles and bricks and found a burst water pipe in the wall cavity, that is, within the common property. The insurer accepted partial responsibility for the works and paid for the cost of repairs to the pipe but did not assume responsibility for the damage caused to lot 6 by gaining access to the pipe. Some provisional repairs were made, however, to permit the occupant of the lot to use the shower. Ms Leen then herself paid a tiler to repair the work and in order to reduce this cost sourced tiles that were as close as she could obtain to the original tiles. The tiler had to replace the tiles damaged in breaking into the wall as well as some tiles that had lifted off the wall before the tiles were repaired. So far as Ms Leen knows, the tiles that were on the shower at the time the pipe burst were the original tiles. The council then reimbursed Ms Leen the amount of $649 Ms Leen paid to the tiler. 117 It is clear that while Ms Leen had a clear recollection about the information that she had been given about these events, that she herself did not observe any of these events. However, Ms Leen did not pretend that her evidence was anything other than based on information she was given by others and whenever possible she took the Tribunal to contemporaneous documents to such as emails and invoices. 118 The applicants cross-examined Ms Leen on various aspects of the tiling work such as why the shower rose in photographs submitted to the strata's insurer seemed to show it had been moved and as to why it appeared to her that more tiles had been replaced than would have been warranted if access to the pipes was from around the taps to the shower. Ms Leen explained that it was her understanding that some tiles were replaced because they were damaged in the process of gaining access to the burst pipe and some were damaged because they lifted off during the time when the shower was used before the tiles could be repaired. Ms Leen also explained that it was her understanding the shower rose was moved because a plumber had made some temporary repairs to allow the shower to be used by the occupant until such time as the shower was retiled. 119 After considering the evidence of Ms Leen and examining the documents I was taken to during her evidence I am satisfied that: (a) In or around June 2023 a pipe situated in the cavity wall behind the shower in lot 6 burst. This burst pipe caused water to leak -- 46 of 52 -- [2026] WASAT 52 Page 47 into lot 6 which continued until the water was isolated. The burst pipe was then accessed by removing tiles from the shower and breaking through a common property wall. (b) Once the pipe was repaired temporary repairs were made to the wall to allow the occupant of lot 6 to shower while waiting on the damaged tiles to be repaired. These temporary repairs included covering over removed tiles with tape and plastic and moving the shower rose to a point slightly lower on the wall than it had been previously. (c) In June 2023 a tiler then retiled the shower using closely matching but not identical tiles. All the tiling work done related to tiles that were either removed to permit access to the burst pipe or which later lifted off due to water entering behind the temporarily placed tape and plastic. This tiling work cost $649 and was necessary to repair the damage caused by the plumber in gaining access to and repairing the common property burst pipe. (d) It was proper for the council to reimburse Ms Leen for her expenditure of $649. That is, I reject the applicants suggestion that Ms Leen took this opportunity to have the shower in lot 6 remodelled at the company's expense and that other lot owners and the strata manager participated in covering up a misuse of the company's funds. 120 Given that I have found the company did properly reimburse the owner of lot 6 for damage to her lot I do not need to consider ground 5 any further in these reasons. 121 My discretion, under s 200(2) of the ST Act to make orders to resolve the dispute between the applicant and the respondent as to the reimbursement to the owner of lot 6 for the cost of tiling work caused by damage to the shower of the lot by the strata's plumber, is therefore not enlivened. Consequently, I must dismiss ground 5 of the applicants' application. With respect to ground 6 122 The applicants assert that at the time of registration of the strata scheme the garages, including the garage to lot 7, did not have doors and that later when a garage door was installed on lot 7 it was not installed on the boundary between the area marked as the lot 7 garage on the strata -- 47 of 52 -- [2026] WASAT 52 Page 48 plan but was installed inside that lot. As a consequence, the roller door to the garage on lot 7 is the private property of the owner of lot 7 and an insurance claim should not have been made to the strata insurer for damage caused to the door by the occupant of lot 7, and the payment should be returned to the insurer. 123 I accept that while it does appear from the minutes of some general meetings that the owners of lots in another row of garages (those being parts of lots 1 to 5) later requested the company approve the installation of roller doors and to enclose their garages and that they might well have done, it is clear from the strata plan that these are completely separate parking areas to the those of lots 6, 7 and 8. I am not convinced that a reference to the state of the garages of lots 1 to 5 at registration of the strata plan is of any help in understanding the state of the garages for lots 6 to 8. In any event, no such minutes were provided to the Tribunal with respect to lot 6, 7 or 8. 124 In my view, the only evidence as to whether lot 7 had a roller door at the time of the registration of the scheme is the evidence of Ms Bevans. Ms Bevans gave evidence the garage to lot 7 always had a roller door, walls and a roof and that these are built along the boundary between lot 7 and common property. I accept Ms Bevans' evidence on this point. 125 Given this finding I conclude that the lot 7 roller door is not only on the boundary of the lot 7 parking area but was present at the time of registration of the strata plan and is therefore common property. This conclusion comprehensively deals with ground 6, and there is no need to consider any other aspect of ground 6 in this application. 126 My discretion, under s 200(2) of the ST Act to make orders to resolve the dispute between the applicant and the respondent as to the reimbursement by the owner of lot 7 for the cost of repairs to a roller door made by the strata's insurer, is therefore not enlivened. Consequently, I must dismiss ground 6 of the applicants' application. With respect to ground 7 127 The applicants contend the Tribunal should, under s 200(2)(o)(i) of the ST Act, make orders requiring the respondent to pay them compensation. The applicants have particularised their compensation claim in various ways. As best as I can follow their various formulations of this claim, it is as follows: -- 48 of 52 -- [2026] WASAT 52 Page 49 (a) The response of the strata company to the various applications brought by the applicants since 2022 is in breach of the company's duties under the ST Act which has caused the applicants distress and anxiety. The applicants request compensation for the strata company's 'wilful breaches of its statutory duties [in respect of the various other applications brought by the applicants] in the amount of $5,000.' (b) The first applicant should be compensated $10,000 for 'duress', 'vilification', 'hostility and oppression' and the refusal by the strata company and strata manager to provide the applicants with services. (c) The strata company has pursued a special levy which the applicants have refused to pay through 'illegal threats with menaces' which has caused distress and anguish to the applicants and the employment of a debt collector is akin to a 'threat of physical violence'. The applicants request compensation in the amount of $13,000 for this conduct. (d) While the first applicant accepts the fees for lodging four applications with the Tribunal, she should be reimbursed for the other eleven applications she has lodged. The applicant has incurred $2,508 in Tribunal lodgement fees and Landgate fees for those other eleven matters and she should be compensated for this expenditure. (e) The first applicant has had to forego paid work as a private tutor to draft submissions in the various applications she has lodged and she should be compensated $10,000 for this loss. (f) The first applicant has paid $800 for 'office goods and computer cartridges' in order to prepare the various applications she has lodged with the Tribunal. The first applicant should be compensated for these payments. (g) The applicants estimate it will cost $5,500 to remove the lot 3 hot water system and place it in the utility duct for lot 3. The applicants should be compensated for these expected future expenses. (h) The applicants seek $40,000 compensation 'for the prolonged illegal and malicious trespass of Lot 3 utility duct as of 12 August 2025'. -- 49 of 52 -- [2026] WASAT 52 Page 50 128 While the applicants accept the sum of their various claims totals well over $50,000 they say they are prepared to compromise their claim for that amount. 129 Item (i) of the applicants' compensation claim appears to be a claim that the Tribunal should levy a penalty on the strata company for its 'wilful breaches of its statutory duty' under the ST Act in the amount of $5,000 and that this penalty should be paid by the respondent to the applicants. There are several difficulties with this aspect of the applicants' claim. First, the Tribunal has no power to impose a penalty on the strata company: s 47(6) of the ST Act. Second, while penalties may be imposed on a strata company for failing to perform a duty, for example under s 105, these are offence provisions and this Tribunal has no power to impose such a penalty. I therefore have no power to make an order of this kind. 130 Item (ii) of the applicants compensation claim is a claim for compensation for psychological injury. There are several difficulties with this aspect of the applicants' claim. First, s 200(2)(o)(i) of the ST Act limits the Tribunal to making orders for payment of compensation claims for pecuniary loss or damage. A claim for personal injuries compensation is a claim for a non-pecuniary loss or damage and therefore cannot be made under s 200(2)(o) of the ST Act. Second, s 204(e) of the ST Act says that this Tribunal 'cannot… make an order by way of compensation for personal injury or death'. I therefore have no power to make an order of this kind. 131 Item (iii) of the applicants claim is for compensation for psychological injury. For the reasons set out above, I have no power to make an order for this kind. 132 Item (iv) is a claim for the Tribunal filing fees and Landgate fees incurred by one or both of the applicants in eleven other applications lodged with this Tribunal. The applicant has provided no particulars as to when his loss was incurred nor have they provided any particulars as to how this loss was incurred. In my view, any such claims, if they can be made at all, are more properly categorised the costs of a party under s 87 of the SAT Act and cannot now be made at this time. 133 Item (v) is a claim for loss of income. It is not clear to me whether this loss of income relates to the eleven other applications made by one or both of the applicants in the eleven other applications lodged with this -- 50 of 52 -- [2026] WASAT 52 Page 51 Tribunal that I have discussed above. At its highest, however, it is a claim for the costs of a party and cannot be made at this time. 134 In my view items (vi) is also a claim for the costs of a party and I have no power to make such an order at this time. 135 Item (vii) is a claim related to the hot water system which is the subject of ground 3 set out above. As the applicants were not successful with respect to ground 3 I therefore cannot make an order of this kind. 136 Item (viii) is a claim related to item (vii) and so I have no power to make an order of this kind. 137 The first applicant also claims for the time she has spent preparing this application although she does not particularise this aspect of her claim. In my view this is also a claim for the costs of a party and I have no power to make such an order at this time. Conclusion 138 For the reasons given above, I would dismiss proceeding CC 736/25 in respect of each of the grounds 2, 3, 5, 6 and 7. However, on doing this there would be no grounds remaining in the proceeding. Therefore, the order I will make is to dismiss the proceeding. 139 I am aware that my dismissal of this proceeding will do nothing to make regular the unauthorised alterations the owner of lot 2 has made to the common property. As the applicants have observed, the strata company itself can review the soundness of the alterations (such as by requiring or obtaining an engineering report) and then at a general meeting consider whether to pass the appropriate resolutions to authorise the alterations or to require their removal. Given the company is now aware these alterations are not authorised under the ST Act I expect they will quickly move to engage in this process and I can see no reason why the Tribunal should interfere with the internal management of the company at this time. Orders The Tribunal orders: 1. The proceeding is dismissed. -- 51 of 52 -- [2026] WASAT 52 Page 52 I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. MR E Cade, MEMBER 14 MAY 2026 -- 52 of 52 --