THE OWNERS OF KINGSWAY GARDENS (STRATA SCHEME 4) and WILKINSON [2026] WASAT 94

[2026] WASAT 94 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : STRATA TITLES ACT 1985 (WA) CITATION : THE OWNERS OF KINGSWAY GARDENS (STRATA SCHEME 4) and WILKINSON [2026] WASAT 94 MEMBER : MS R PETRUCCI, MEMBER HEARD : 11 FEBRUARY 2026 FINAL WRITTEN SUBMISSIONS FILED 20 MAY 2026 DELIVERED : 12 AUGUST 2026 FILE NO/S : CC 193 of 2025 BETWEEN : THE OWNERS OF KINGSWAY GARDENS (STRATA SCHEME 4) First Applicant AND CHRISTOPHER WILKINSON First Respondent VERONICA WILKINSON Second Respondent Catchwords: Strata Titles Act 1985 (WA) - Application seeking resolution of scheme dispute or proceeding - Whether strata company authorised to commence or continue proceeding - Whether Tribunal lacks jurisdiction - Whether 'scheme dispute' - Procedural fairness - Whether new material introduced - Whether new substantive -- 1 of 61 -- [2026] WASAT 94 Page 2 matters raised - Rule in Jones v Dunkel - Whether adverse inferences drawn where witnesses not called to give evidence - General duty of strata company - Required insurance - Whether balcony contained within strata lot - Whether balcony alteration authorised - Whether Uniform Building Bylaws 1961 (WA) apply - Whether National Construction Code applies - Whether balcony alteration non-compliant - Discretionary statutory powers of Tribunal to make declarations and orders to resolve scheme dispute or proceeding - Turns on own facts Legislation: Building Act 2011 (WA), s 9, s 51, s 51(1) Building Regulations 1989 (WA), reg 5(2) Building Regulations 2012 (WA), reg 31A(2), reg 31E(2) Interpretation Act 1984 (WA) State Administrative Tribunal Act 2004 (WA), s 9, s 32, s 36, s 38, s 38(1), s 95, Pt 4, Div 5 State Administrative Tribunal Rules 2004 (WA), r 42A, Div 6 Strata Titles (General) Regulations 2019 (WA) Strata Titles Act 1966 (WA), s 3, s 5 Strata Titles Act 1985 (WA) (prior to 1 May 2020), s 3(1), s 3(2) Strata Titles Act 1985 (WA), s 3, s 3(2)(a), s 3(2)(b), s 38(1), s 47, s 47(5), s 87, s 89, s 91, s 91(1), s 94, s 97, s 97(1), s 98, s 100(1), s 100(2), s 123(7), s 135, s 197(1), s 197(1)(a), s 197(1)(a)(vi), s 197(2), s 197(3), s 197(4), s 199, s 199(1), s 199(3), s 200, s 200(1), s 200(1)(i), s 200(2), s 200(2)(m), s 207, s 207(2), s 207(3), s 209, s 210 Uniform Building Bylaws 1961 (WA) Result: Application successful Category: B Representation: Counsel: First Applicant : Mr MA Atkinson First Respondent : Mr KA Dundo & Mr S Craig Second Respondent : Mr KA Dundo & Mr S Craig -- 2 of 61 -- [2026] WASAT 94 Page 3 Solicitors: First Applicant : Atkinson Legal First Respondent : KD Legal (Perth) Second Respondent : KD Legal (Perth) Case(s) referred to in decision(s): Ainsworth v Albrecht [2016] HCA 40; (2016) 261 CLR 167 Hoddinott and Zar [2026] WASAT 25 Hopkins and Clayton [2007] WASAT 255 Jones v Dunkel (1959) 101 CLR 298 The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1 Zhao and The Owners of 5 Wimbledon Street Beckenham Strata Scheme 40695 [2025] WASAT 87 -- 3 of 61 -- [2026] WASAT 94 Page 4 Table of Contents Introduction ........................................................................................................................... 6 Amended orders sought by the strata company ................................................................. 9 Outcome .......................................................................................................................... 10 Challenge by Mr and Mrs Wilkinson to the scope of strata company's materials and matters raised at the final hearing..................................................................................................... 10 Consideration of the challenges by Mr and Mrs Wilkinson ............................................ 12 Relevant procedural history and evidence ........................................................................... 13 Expert witness ................................................................................................................. 14 Non-expert witnesses ....................................................................................................... 14 Issues ................................................................................................................................... 15 Strata company's application for costs ................................................................................ 16 Jurisdiction issues ................................................................................................................ 16 Whether Mr Caine and Ms Carnegie should remain parties to the proceeding? ............. 17 Whether the strata company commencing or continuing the proceeding contravenes s 135 of the ST Act? ........................................................................................................... 18 What are the functions of council? .............................................................................. 18 Whether the strata company is a person? .................................................................... 21 Whether there is a scheme dispute? ................................................................................. 24 Mr and Mrs Wilkinson's position ................................................................................ 24 Strata company's position ............................................................................................ 26 Consideration as to whether there is a 'scheme dispute' .............................................. 27 Whether the application can be determined under s 197(4)? .......................................... 29 Conclusion - jurisdiction issues ....................................................................................... 30 Lot boundary issue .............................................................................................................. 30 Whether the balcony and balcony alteration is part of Lot 9? ......................................... 30 What is the boundary of Lot 9? ................................................................................... 30 Conclusion - lot boundary issue ...................................................................................... 32 Compliance issues ............................................................................................................... 33 Whether an alteration was made to Lot 9's balcony? ...................................................... 33 Whether Lot 9's balcony is required to comply with the NCC? ...................................... 33 Mr and Mrs Wilkinson's position ................................................................................ 33 Strata company's position ............................................................................................ 35 Consideration of whether Lot 9's balcony is required to comply with the NCC ......... 36 Whether there is a building licence and if so, whether Lot 9's balcony alteration is compliant with that licence? ............................................................................................ 43 -- 4 of 61 -- [2026] WASAT 94 Page 5 Mr and Mrs Wilkinson's position ................................................................................ 43 The strata company's position ..................................................................................... 44 Consideration of whether there is a building licence for Lot 9's balcony alteration ... 45 Who is required to make Lot 9's balcony compliant with the NCC and who is to pay the cost? ................................................................................................................................. 47 Mr and Mrs Wilkinson's position ................................................................................ 47 The strata company's position ..................................................................................... 49 Consideration of who is required to make Lot 9's balcony compliant with the NCC and who is to pay the cost............................................................................................ 50 Conclusion - compliance issues....................................................................................... 52 Exercise of statutory discretion ........................................................................................... 52 What are the considerations in exercising the Tribunal's discretion to make declarations and orders?....................................................................................................................... 52 Consideration of whether to exercise discretion.............................................................. 54 Conclusion - exercise of discretion issue ........................................................................ 58 Conclusion ........................................................................................................................... 59 Orders .................................................................................................................................. 60 -- 5 of 61 -- [2026] WASAT 94 Page 6 REASONS FOR DECISION OF THE TRIBUNAL: Introduction 1 One of the first strata plans in Western Australia, Strata Scheme 4, was registered some 58 years ago on 8 July 1968 by the Registrar of Titles under the then Strata Titles Act 1966 (WA) (1966 Act). The scheme comprises 75 residential lots overlooking Kings Park in the inner-city suburb of West Perth (strata scheme). The building of the strata scheme is described on the strata plan as:1 10-storey block of Home Units, of load bearing brick construction, with 2-deck Car Parking for 97 cars. 2 According to The Owners of Kingsway Gardens Strata Plan 4 (strata company), some years ago, a lot owner queried the fire compliance of the building. This initial query prompted a wider review of balcony compliance across the strata scheme, ultimately leading to this proceeding. 3 At the meeting of the council of the strata company,2 held on 7 March 2025,3 the following was recorded (in part):4 10. With the cooperation of lot owners, thirty-seven (37) balconies were identified as non-compliant as at July 2021. With the exception of Lot 9 all lot owners have either completed work to ensure their balconies comply with applicable current codes, or have given undertakings to the [c]ouncil to do so. 11. The [c]ouncil decided to file an application with the [Tribunal] regarding the non-compliant balcony enclosure in Lot 9 (Unit 13). Abode Strata will inform all owners in writing about the application[.] 4 On 25 March 2025, Mr John Patrick Little, an owner of Lot 735 in the strata scheme commenced the proceeding in the Tribunal under s 197(4) of the Strata Titles Act 1985 (ST Act)6 seeking orders to resolve a scheme dispute or proceeding against the first and second respondents, 1 Exhibit 1 at pages 23 to 50. 2 The council is the governing body of the strata company as defined in s 3 of the Strata Titles Act 1985 (WA) (ST Act). 3 Exhibit 1 at pages 51 to 52. 4 Ibid. 5 Exhibit 1 at page 257. 6 The ST Act replaced the 1966 Act. -- 6 of 61 -- [2026] WASAT 94 Page 7 Mr Christopher Wilkinson and Mrs Veronica Wilkinson (Mr and Mrs Wilkinson). 5 Mr and Mrs Wilkinson are the current owners of Lot 97 on the strata plan. They purchased Lot 9 in March 2015 and the lot is located on the first floor.8 6 In his application,9 Mr Little alleges that Lot 9's balcony which is enclosed with windows and/or sliding doors (balcony alteration) is non-compliant with the National Construction Code (NCC) C2.6.10 7 At the first directions hearing on 2 May 2025, the Tribunal, differently constituted, removed Mr Little as the applicant, and substituted the strata company as the applicant in the proceeding under s 38(1) of the SAT Act. In their closing written submissions, Mr and Mrs Wilkinson assert that the strata company is not authorised to commence or to continue the proceeding. This contention is addressed later (see below at [50] to [66]). 8 As is usual in these types of matters, the Tribunal, differently constituted, made orders for the filing of documents, photographs and other materials on which each party intends to rely. In addition, the strata company was ordered to give to each lot owner a copy of the application and to invite any lot owner who wished to participate as a party to notify the Tribunal by 6 June 2025. In their closing written submissions, both parties submit that Mr Corrin Caine, who was joined by the Tribunal, differently constituted, as the second applicant at the second directions hearing held on 10 June 2025, and Ms Jean Hilda Carnegie, who was also joined by the Tribunal, differently constituted, as the fifth respondent at that directions hearing, took no substantial part in the proceeding and should be removed. Their removal is considered later (see below at [42] to [48]). 9 Early in the proceeding, the Tribunal, differently constituted, ordered for the parties to attend mediation on 27 June 2025. The parties 7 Lot 9 is also known as Unit 13. To avoid any confusion, in these reasons, I have only referred to the Lots on the strata plan (rather than the Unit number which is referred to in many of the documents). 8 Exhibit 1 at page 472. 9 Exhibit 1 at page 2. 10 The Australian Building Codes Board, on behalf of the Australian Government and each State and Territory government, produces and maintains the National Construction Code (NCC). The NCC is a performance- based code, where it sets the minimum required level for the safety, health, amenity, accessibility and sustainability of certain buildings. -- 7 of 61 -- [2026] WASAT 94 Page 8 were unable to resolve their dispute or narrow down the issues through that process. 10 The strata company's position is the same as that of Mr Little - that the balcony contained within Lot 9 has been enclosed with windows and/or sliding doors (balcony alteration) which without a building licence, is not compliant with the NCC or the earlier relevant building standards under the Uniform Building Bylaws 1961 (WA) (UBBL).11 12 The strata company says that, despite extensive searches, there is no record of approval for Lot 9's balcony alteration by either the strata company or the relevant local government authority, in this case, the City of Perth. The strata company contends that Mr and Mrs Wilkinson, as the current owners of Lot 9, have refused to ensure that their balcony complies with the NCC which has put the strata scheme's insurance cover in jeopardy because the insurer, CHU Underwriting Agencies Pty Ltd (CHU), has indicated that unless all balconies are compliant with required standards, it will not renew the insurance for the strata scheme. 11 Insurance is a mandatory obligation of the strata company under s 97 of the ST Act. 12 In contrast, Mr and Mrs Wilkinson deny that they are responsible for the cost of any works that may be required to Lot 9's balcony because of the balcony alteration. They assert:13 (a) the strata company dealt with matters regarding the balcony alteration at the relevant time, and engaged the architecture firm Krantz and Sheldon; (b) Krantz and Sheldon drew plans on instructions made by the strata company for the balcony alteration; and (c) the strata company approved the balcony alteration and was dealing with the City of Perth. 13 Further, Mr and Mrs Wilkinson submit that, while the orders sought in the application require them to give an undertaking to the strata company that they will attend to making Lot 9's balcony compliant with 11 The strata company's closing written submissions filed on 7 May 2026 at page 7 with reference to ts 23 - 24, 11 February 2026. 12 The UBBL historically referred to standardised local government or State regulations designed to control structural safety, boundary setbacks, and material standards. These legacy local laws have largely been superseded in Western Australia by legislative frameworks including the Building Act 2011 (WA) and the NCC. 13 Exhibit 1 at page 384. -- 8 of 61 -- [2026] WASAT 94 Page 9 the NCC, nothing in the application alleges that they are in breach of the ST Act or the scheme by-laws. They submit there is no basis for requiring them to provide an undertaking to the strata company.14 Amended orders sought by the strata company 14 Subsequently, pursuant to an order of the Tribunal, differently constituted,15 the strata company was ordered to file a written statement of proposed amended orders it seeks and the grounds for each amended order sought. That was done on 12 August 2025. The strata company seeks the following amended orders against Mr and Mrs Wilkinson under the ST Act (amended orders):16 1. The First Applicant seeks the following alternative orders: 1.1 Orders sought under section 197(4), … [of the ST Act]: (a) That the First and Second Respondents provide the strata company with an irrevocable undertaking within fourteen (14) days stating that the balcony in Lot 9 will be rendered compliant with the National Construction Code 2022 Amendment 2, C3D7;17 (b) Within 90 days of providing the undertaking above, the First and Second Respondents complete the necessary work to ensure that the balcony of Lot 9 complies with the National Construction Code 2022 Amendment 2, C3D7 within 90 days;18 or 1.2 An order under Section 200(2)(m) of the [ST] Act that the First and Second Respondents at their cost, reinstate the balcony within Lot 9 within ninety (90) days of an order of the Tribunal to reinstate the balcony of Lot 9 to its original condition. 2. An order under Section 200(1), 200(1)(l) or 200(2)(m) of the [ST] Act, if the First and Second Respondent fail to comply with orders 1.1 or 1.2, the First Applicant by its contractors will complete the balcony work and upon completion of the balcony work, the First and Second Respondents must pay to the First Applicant immediately upon demand a sum of money equal to the 14 Exhibit 1 at page 388. 15 Exhibit 1 at page 14. 16 Exhibit 1 at pages 263 to 264 and 342 to 343. 17 Exhibit 5 at page 2 where the reference to 'C2' is updated to 'C3D7'. For ease of reference, and as used by the parties, in these reasons, I have referred to the NCC C2 rather than the renumbered NCC C3D7. 18 Ibid. -- 9 of 61 -- [2026] WASAT 94 Page 10 amount charged to the First Applicant by the First Applicant's contractors for the balcony work. 3. Under the State Administrative Tribunal Act 2004 (WA) Section 87(2), the First and Second Respondents must jointly and severally pay the legal costs and other costs and disbursements of the First Applicant relating to these proceedings to be assessed and then paid within twenty-eight (28) days of that assessment. 15 The matter was listed for a final hearing on 17 November 2025. Due to the unavailability of the strata company's legal representative, that hearing was vacated and relisted to 11 February 2026. In their closing written submissions, Mr and Mrs Wilkinson challenge the scope of the strata company's materials and the matters it raised at the final hearing. I deal with those challenges below at [18] to [26]. 16 This proceeding comes within the Tribunal's original jurisdiction (s 209 of the ST Act). The Tribunal's role is not inquisitorial. While the Tribunal may determine how to proceed with a hearing, as provided for in s 32 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), it is not the Tribunal's role to lead the investigation of the facts. Rather, the Tribunal decides the dispute on the evidence presented to it. The usual practice is that the parties manage their respective cases. Accordingly, the strata company, as the applicant, bears the burden of proving its case. It must persuade the Tribunal, on the balance of probabilities, that it is entitled to the relief (orders) it seeks against Mr and Mrs Wilkinson: Zhao and The Owners of 5 Wimbledon Street Beckenham Strata Scheme 40695 [2025] WASAT 87 at [10]. Outcome 17 In the following reasons, I explain why the application is successful. The orders are set out below following [214]. Challenge by Mr and Mrs Wilkinson to the scope of strata company's materials and matters raised at the final hearing 18 In their closing written submissions,19 Mr and Mrs Wilkinson submit that the strata company's case must be limited to the application filed on 25 March 2025 along with the amended orders and grounds filed on 12 August 202520 which set out: 19 Mr and Mrs Wilkinson's closing written submissions filed on 20 May 2026 at pages 3 to 6. 20 Exhibit 1 at pages 342 to 343. -- 10 of 61 -- [2026] WASAT 94 Page 11 (a) Lot 9's balcony does not comply with NCC 2.6; (b) the balcony alteration does not comply with NCC 2.6; (c) Mr and Mrs Wilkinson are responsible for ensuring that Lot 9's balcony complies with NCC 2.6; and (d) without Lot 9's balcony being compliant with NCC 2.6, the strata company will not be able to be insured. 19 Mr and Mrs Wilkinson assert that the strata company went beyond the scope of the strata company's application and amended orders and grounds. In particular, they say that the strata company, during the final hearing, sought to raise the following new substantive matters: (a) an alleged shift from an insurance related concern to an assertion that the balcony creates a safety risk; (b) alleged breaches of scheme by-laws; (c) alleged breaches of the statutory scheme; and (d) a change in witnesses on the morning of the final hearing, specifically the exclusion of Mr Connor Amaranti, client manager, employed by BMS Risk Solutions Pty Ltd (BMS). 20 Because of the above, Mr and Mrs Wilkinson submit: (a) the case advanced in the application and the amended orders sought and grounds is materially and starkly different from the matters raised by the strata company at the final hearing; (b) the strata company has had the assistance of legal representation from early in this proceeding and therefore had ample opportunity to amend its material in a timely manner if it intended to rely on additional or different matters. The strata company chose not to do so and did not seek an adjournment to ensure that no prejudice was occasioned; (c) the strata company ought not be permitted, at this late stage in the proceeding, to recast its case or advance a new basis for relief. Rather, the strata company should be confined to the case and material properly before the Tribunal, namely that the works were said to prevent the strata company from obtaining insurance; and -- 11 of 61 -- [2026] WASAT 94 Page 12 (d) 'trial by ambush' is inconsistent with the principles of natural justice and procedural fairness and allowing such an approach would cause significant and incurable prejudice. Consideration of the challenges by Mr and Mrs Wilkinson 21 I observe that none of the above challenges were raised by the legal representative for Mr and Mrs Wilkinson during the final hearing on 11 February 2026. Had they been raised at the time, I would have heard submissions and determined each challenge during the hearing. 22 I also note that Mr and Mrs Wilkinson's position has changed somewhat during the proceeding. Initially, they asserted that any works to make Lot 9's balcony compliant with NCC C2.6 were the responsibility of the strata company and that the strata company must bear those costs. In contrast, in their closing written submissions, Mr and Mrs Wilkinson challenge the jurisdiction of the Tribunal on the basis that there is no 'scheme dispute'. This jurisdictional challenge is addressed later (see below at [67] to [85]). 23 In his opening at the final hearing, the legal representative for the strata company referred to buildings going up like a 'Roman candle' because of the spread of fire where the required vertical fire separation in not in place. I do not regard that reference as changing the strata company's case or advancing a new basis for relief. Rather, it illustrated the strata company's consistent position: Lot 9's balcony does not comply with NCC C2.6 because the building lacks sprinklers, and no building licence exists for the balcony alteration. I found no submissions, including in the strata company's closing written submissions, indicating a change in the strata company's case or an advance of a new basis for relief. I therefore reject this challenge. 24 To the extent that the legal representative for the strata company referred to specific scheme by-laws and sections of the ST Act during the final hearing and in closing written submissions, I understand those references as supporting the strata company's position that a scheme dispute exists concerning Lot 9's balcony alteration. The strata company relies on the absence of a building licence, the resulting non-compliance with the NCC and the (then) UBBL, and CHU's position that it will not proceed with renewal terms if the balcony remains non-compliant. I do not regard those references as a shift in the strata company's case. For completeness, I note the application before the Tribunal is not an application to enforce scheme by-laws. Such an application would be -- 12 of 61 -- [2026] WASAT 94 Page 13 made under s 47 of the ST Act. I therefore reject this challenge. Whether a 'scheme dispute' exists is considered later (see below at [79] to [85]). 25 Regarding the challenge about witnesses changing on the morning of the final hearing, I do not accept that this amounted to trial by ambush. A change in legal representation occurred shortly before the final hearing, and the decision to not call certain witnesses, although late, did not alter the strata company's case or advance a new basis for relief. Later, I consider whether an adverse inference should be drawn under Jones v Dunkel (1959) 101 CLR 298, 313, 321-322 (Jones v Dunkel) (see below at [167] to [168] and [175] to [180]). 26 For the reasons set out above, I reject all of Mr and Mrs Wilkinson's challenges to the scope of the strata company's materials and to the matters raised at the final hearing. Relevant procedural history and evidence 27 All documents filed with the Tribunal were admitted into evidence21, subject to any objection. No objection was made. However, the parties made submissions about the weight I should give some of the evidence. I deal with those submissions, where relevant, later in these reasons. 28 In making my decision for the Tribunal, I have had regard to the documents marked as exhibits at the final hearing: Exhibit 1: Hearing book prepared by the Tribunal dated 10 February 2026 (pages 1 to 526); Exhibit 2: Summonsed documents of BMS filed on 18 December 2025 and issued to the parties on 4 February 2026 (pages 1 to 351); Exhibit 3: Summonsed documents of CHU filed on 29 January 2026 and issued to the parties on 4 February 2026 (pages 1 to 538); Exhibit 4: Strata company's further bundle of documents filed on 9 February 2026 (pages 1 to 66); Exhibit 5 Strata company's amendment of revised orders sought filed on 11 February 2026 (pages 1 to 2); and 21 Noting that submissions are not evidence. -- 13 of 61 -- [2026] WASAT 94 Page 14 Exhibit 6: Strata company's further bundle of documents filed on 11 February 2026 (pages 1 to 15). 29 The matter was heard on 11 February 2026 (the final hearing), following which, I made orders for the parties to file their closing written submissions. The final submission was filed on 20 May 2026, after which I reserved my decision. 30 At the final hearing, I had the benefit of hearing from the following witnesses. Expert witness 31 Mr Mark Viska prepared a report dated 23 September 2025 and confirmed its contents at the final hearing. Mr Viska is a qualified building surveyor and building certification manager and is currently employed by BCA Consultants (WA) Pty Ltd. He gave affirmed evidence that Lot 9's original concrete balcony, before it was enclosed, met the requirements of the UBBL. He further testified that he is not aware of any building licence for the balcony alteration and that, from ground level observation the aluminium glazed sliding door or window enclosure does not comply with vertical fire separation requirements set out in the UBBL and NCC for multi-storey apartment buildings of three or more storeys without a sprinkler system. Non-expert witnesses 32 Mr Peter Mickelberg filed a witness summary dated 22 September 2025 and confirmed its contents at the final hearing. Mr Mickelberg has been the building manager for the strata complex since about December 2019. His duties include caretaking duties, such as general cleaning and monitoring security, and liaising with lot owners about a range of issues, including renovations. Mr Mickelberg stated that he is not a lot owner, although his wife previously owned a lot. He also stated that all owners in the strata complex, apart from Mr and Mrs Wilkinson as owners of Lot 9, have committed to making their balconies compliant with the NCC and are at various stages of compliance. 33 Mr John Little, owner of Lot 73, filed a witness summary dated 22 September 2025 and confirmed its contents at the final hearing. Mr Little gave affirmed evidence that all owners, apart from Mr and Mrs Wilkinson as owners of Lot 9, have committed to making their balconies compliant with the NCC. He also gave evidence that the -- 14 of 61 -- [2026] WASAT 94 Page 15 insurance broker advised insurance would be denied if the balconies are not compliant. 34 Mr Wilkinson filed a witness statement dated 31 October 2025 and confirmed its contents at the final hearing. Mr Wilkinson gave affirmed evidence that the minutes of a council meeting held on 5 February 2023 record that the council approved the balcony changes many years ago. On that basis, he says that he and Mrs Wilkinson are not solely responsible for the cost of alterations to the balcony of Lot 9 or any proposed works to that balcony. Mr Wilkinson challenged the evidence given by Mr Mickelberg and Mr Little that he and Mrs Wilkinson were the only owners who had not given an undertaking to the strata company to complete works to reinstate the balcony to its original construction design. 35 As noted earlier, Mr and Mrs Wilkinson challenge the strata company's decision not to call Mr Amaranti, Mr Booth and a representative from CHU to give evidence. They rely on Jones v Dunkel, and submit that an adverse inference should be drawn. This is addressed later in these reasons (see below at [167] to [168] and [175] to [180]. Issues 36 The key issues for determination are: (1) Whether: (a) the commencement or continuation of the proceeding by the strata company contravenes s 135 of the ST Act? (b) there is a 'scheme dispute' and if so, whether the application before the Tribunal can be determined under s 197(4) of the ST Act? (Jurisdiction issues) (2) Whether the balcony and the balcony alteration is part of Lot 9 or common property? (Lot boundary issue) (3) Whether Lot 9's balcony is required to comply with the NCC? -- 15 of 61 -- [2026] WASAT 94 Page 16 (a) whether Lot 9's balcony alteration was the subject of a building licence? (b) if there was a building licence, whether Lot 9's balcony alteration complies with that building licence? (4) Who is required to make the balcony compliant with the NCC and who is required to pay the costs of making the balcony compliant with the NCC? (Compliance issues) (5) What are the considerations to exercise the Tribunal's discretion to make declarations and orders? (6) Whether the Tribunal should exercise its discretionary statutory powers under s 199 and/or s 200 of the ST Act to make declarations and/or orders to resolve the scheme dispute or proceeding? (Exercise of discretion issue) Strata company's application for costs 37 In its amended orders sought (see above at [14]), the strata company seeks its legal costs and disbursements. In closing written submissions,22 the strata company proposed that costs be determined after the substantive application. 38 Under r 42A of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules), a party may apply to the Tribunal for costs under Div 6 of the SAT Rules. Such an application must be made within 21 days after the Tribunal makes the orders to which the application relates. 39 Subject to Div 5 of Pt 4 of the SAT Act, which deals with costs of parties and others, it is open to the parties to apply to the Tribunal for their costs in the proceeding. Programming orders appear after [214]. Jurisdiction issues 40 Before considering the lot boundary issue, the compliance issues and the exercise of discretion issue (see above at [36]), I must first determine whether the Tribunal has jurisdiction. 22 The strata company's closing written submissions filed on 7 May 2026 at page 9. -- 16 of 61 -- [2026] WASAT 94 Page 17 41 Mr and Mrs Wilkinson raise several jurisdictional issues, asserting that the Tribunal does not have jurisdiction. Whether Mr Caine and Ms Carnegie should remain parties to the proceeding? 42 I first consider whether Mr Caine and Ms Carnegie should remain parties. 43 It is useful to start by setting out s 38 of the SAT Act which provides when a person may be joined as a party to the proceeding. The section provides: 38. Joining person as party to proceeding (1) The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that - (a) the person ought to be bound by, or have the benefit of, a decision of the Tribunal in the proceeding; or (b) the person's interests are affected by the proceeding; or (c) for any other reason it is desirable that the person be joined as a party. (2) The Tribunal may make an order under subsection (1) on the application of any person or on its own initiative. 44 Mr Caine is the owner of Lot 71. At the second directions hearing held on 10 June 2025, the Tribunal, differently constituted, joined Mr Caine as the second applicant under s 38(1) of the SAT Act. Mr Caine did not file a witness statement or any written submissions on the issues to be determined, and he did not attend the final hearing. Further, Mr Caine's stated purpose for being joined, expressed in an email between him and Mr Wilkinson, was to 'have a seat at the table at mediation'. 45 Mr Caine's stated reason for being joined as a party is not a proper purpose. I will therefore remove Mr Caine as a party to this proceeding (see below following [214]). 46 Ms Carnegie is the owner of Lot 35. She was joined as the fifth respondent by the Tribunal, differently constituted, at the second directions hearing held on 10 June 2025 under s 38(1) of the SAT Act. -- 17 of 61 -- [2026] WASAT 94 Page 18 Ms Carnegie did not file a witness statement or any written submissions on the issues to be determined, and she did not attend the final hearing. 47 It is not clear why Ms Carnegie was joined as a party. As she did not participate, I will remove her as a party to this proceeding (see below following [214]). 48 Finally, for completeness, two other lot owners were joined as parties to the proceeding by the Tribunal, differently constituted, at the second directions hearing on 10 June 2025 but both were removed, at their request.23 Whether the strata company commencing or continuing the proceeding contravenes s 135 of the ST Act? 49 I next turn to the contention that the strata company is not authorised to commence or to continue the proceeding. 50 Mr and Mrs Wilkinson's position is that, at the AGM held on 5 September 2023 (2023 AGM), a motion for the strata company to file an application with the Tribunal against lot owners who had not sought retrospective approval from the Tribunal and a permit from the City of Perth failed. The motion concerned reinstating lots and balcony areas to their original construction design to ensure compliance with adequate fire separation and fire safety and to achieve or reinstate a uniform external appearance of all lots in the scheme. The minutes record 31 votes against the motion and 7 votes in favour.24 What are the functions of council? 51 Mr and Mrs Wilkinson assert that the strata company's conduct in continuing with the proceeding contravenes s 135 of the ST Act and as such the proceeding is irrevocably tarnished and cannot be determined in favour of the strata company because: (a) Mr Little (the original applicant) lacked authority to commence the proceeding; and (b) the council lacks authority to instruct or otherwise deal with this proceeding. 23 Exhibit 1 at page 12. 24 Exhibit 1 at pages 407 to 415. -- 18 of 61 -- [2026] WASAT 94 Page 19 52 It is useful to start by setting out s 135 of the ST Act, which Mr and Mrs Wilkinson contend the strata company has contravened. That section provides: 135. Functions and constitution of councils (1) The functions of a strata company, subject to this Act and to any restriction imposed or direction given by ordinary resolution, are to be performed by the council of the strata company. (2) The council of a strata company must be constituted and perform its functions in accordance with this Act and the scheme by-laws. (3) On an election of the council at a general meeting of the strata company - (a) a person who is entitled to vote in the election and who is present in person or by proxy at the meeting may demand that the votes in the election be counted by unit entitlement of the lots; and (b) if no such demand is made, the votes in the election are to be counted by number. (4) 1 of the members of the council of a strata company must hold office as the chairperson of the strata company. Note for this section: Section 143 provides that the functions of a strata company or the council or an officer of a strata company may be performed by a strata manager. 53 The following facts are uncontroversial or are not in dispute. I make the following findings: (a) On 13 February 2023, the strata manager issued a notice to lot owners about the balcony glass enclosures stating:25 The Council of Owners has advice that the balcony alteration is the responsibility of the lot owner. In the event that you do not wish to reinstate the balcony in such a way as to make it compliant with the National Construction Code then you must make an application to the State Administrative Tribunal pursuant to section 90 of the Strata Titles Act 1985 and to the 25 Exhibit 1 at page 403. -- 19 of 61 -- [2026] WASAT 94 Page 20 City of Perth for retrospective approval. If you think the balcony alteration is compliant then you should engage a qualified building inspector to assess the balcony and provide a report to the strata company. (b) The motion put at the 2023 AGM for the strata company to commence the proceeding against various lot owners (and not just Mr and Mr Wilkinson) failed. (c) On or about 11 February 2025, the strata manager issued the 'Final Demand Notice: Balcony Compliance' to Mr and Mrs Wilkinson. The notice required Mr and Mrs Wilkinson to bring their Lot 9 into compliance with the NCC because:26 … This is critical to ensure the safety and compliance of the building. (d) According to the above notice, the strata manager had previously corresponded with Mr and Mrs Wilkinson about the issue on 4 December 2024 and again on 12 December 2024. In addition, the notice makes it clear that failure by Mr and Mrs Wilkinson to provide to the strata company an irrevocable undertaking within 7 days of the notice to commence the necessary works to rectify the balcony due to the glass enclosures, that an application would be made by the strata company to the Tribunal.27 (e) The minutes of the meeting of the council on 7 February 202528 of which Mr Little was a member, reflect that the council decided to follow up Mr and Mrs Wilkinson by email stating that they had seven days to provide suitable plans to make Lot 9's balcony complaint and if nothing was received then the matter would be taken to the Tribunal. (f) On 25 March 2025 an application was filed with the Tribunal with Mr Little named as the applicant and Mr and Mrs Wilkinson named as the respondents.29 54 The position of Mr and Mrs Wilkinson is that the motion put to the 2023 AGM failed (see above at [50]) and therefore the strata company does not have authority to commence or continue the proceeding. 26 Exhibit 1 at page 312 to 312. 27 Ibid. 28 Exhibit 6 at pages 9 to 13. 29 Exhibit 1 at pages 1 to 3. -- 20 of 61 -- [2026] WASAT 94 Page 21 55 However, as explained below at [57], the strata company did not make the application. Whether the strata company is a person? 56 Section 36 of the SAT Act identifies who is a party to a proceeding. It provides: 36. Who are parties to proceedings (1) A person is a party to a proceeding before the Tribunal if the person is - (a) the applicant; or (b) a person joined under section 38 as a party to the proceeding; or (c) a person intervening in the proceeding; or (d) specified by this Act or the enabling Act to be a party to the proceeding. (2) If the proceeding is in the Tribunal's original jurisdiction, anyone else in respect of whom a decision of the Tribunal is sought is also a party[.] 57 On 2 May 2025, at the first directions hearing, the Tribunal, differently constituted, on its own initiative removed Mr Little as the applicant and made an order that the strata company is the applicant by application of s 38(1) of the SAT Act. 30 That section provides that a person may be joined to the proceeding by the Tribunal on its own initiative or on the application of any person, subject to it being satisfied that: (a) the person ought to be bound by, or have the benefit of, a decision of the Tribunal in the proceeding; or (b) the person's interests are affected by the proceeding; or (c) for any other reason it is desirable that the person be joined as a party. 58 The term 'person' is not defined in the SAT Act, but it is defined in the Interpretation Act 1984 (WA) as follows: 30 Exhibit 1 at page 10. -- 21 of 61 -- [2026] WASAT 94 Page 22 person or any word or expression descriptive of a person includes a public body, company, or association or body of persons, corporate or unincorporate[.] 59 The term 'strata company' is defined in s 3 of the ST Act as follows: strata company means a body corporate established under section 14 on registration of a strata titles scheme[.] 60 By application of the definition of strata company in s 3 of the ST Act, it is clear that a strata company is a 'person' for the purposes of s 38(1) of the SAT Act. 61 While Mr and Mrs Wilkinson assert that the council has no authority to instruct or otherwise deal with this proceeding, the strata company was joined as the applicant by order of the Tribunal, differently constituted, on 2 May 2025 under s 38(1) of the SAT Act. In my view, it was entirely reasonable for the Tribunal to join the strata company as the applicant. This is because the strata company ought to be bound by, or have the benefit of, the Tribunal's decision concerning Lot 9's balcony alteration. Further, the conclusion to join the strata company as the applicant in this proceeding is supported by the reasons advanced by the legal representative for Mr and Mrs Wilkinson, including that:31 (a) the dispute between Mr Little and Mr and Mrs Wilkinson arises from decisions that involve the strata company, namely the balcony alteration; (b) the balcony alteration affect the interests of the lot owners on the strata plan; (c) the strata company acts on behalf of the owners and should represent all owners' interests; and (d) if works in respect of the balcony alteration are to be undertaken by the strata company, then in order to ensure adherence, the strata company needs to be a party to the proceeding. 62 It therefore follows by application of s 135 of the ST Act that the function of the strata company in participating in the proceeding is to be performed by its council, which is the representative of the strata company. 31 Exhibit 1 at pages 384 to 385. -- 22 of 61 -- [2026] WASAT 94 Page 23 63 I note that the strata company at its AGM held recently on 19 November 202532 voted 52:3 against not authorising the strata company to make an application or continue the current proceeding in the Tribunal. While the vote was taken after the application by Mr Little as filed with the Tribunal, it does confirm that the members of the strata company voted in favour (by ordinary resolution as required by s 123(7) of the ST Act) of the strata company continuing with the proceeding in the Tribunal. 64 For completeness, I do not accept Mr and Mrs Wilkinson's assertion that Mr Little did not have authority to commence the proceeding.33 This is because Mr Little is a 'person' (per the definition set out above at [58]) and he is a member of the strata company as he is an owner of a lot on the strata plan (he is an owner of Lot 73). Mr Little is a 'scheme participant' as that term is defined in s 197(2) of the ST Act as he is a lot owner. Therefore, subject to finding there is a 'scheme dispute', which I turn to consider later in these reasons (see below at [67] to [85]), in my view, it was open to Mr Little to make an application to the Tribunal under s 197(4) of the ST Act. 65 Finally, I observe that the legal representative for Mr and Mrs Wilkinson notified the Tribunal of their appointment on 30 April 2025. On the same day, they filed a minute of proposed orders that included an order seeking to have the strata company joined to this proceeding. The challenge to the strata company's authority to commence or continue with the proceeding was not raised until closing written submissions were filed on 20 May 2026. In my view, that challenge could have been raised much earlier, including at or about the time the strata company was joined as a party to the proceeding by the Tribunal some twelve months earlier, on 2 May 2025. 66 In conclusion, the Tribunal, differently constituted, removed Mr Little and substituted the strata company as the applicant in the proceeding, under s 38(1) of the SAT Act. Section 135 of the ST Act therefore requires the council, as the representative of the strata company, to perform the strata company's functions in continuing the proceeding. 32 Exhibit 4 at page 7. 33 Mr and Mrs Wilkinson's closing written submissions filed on 20 May 2026 at page 17. -- 23 of 61 -- [2026] WASAT 94 Page 24 Whether there is a scheme dispute? 67 I now turn to consider if there is a 'scheme dispute'. If there is no scheme dispute, then the application is misconceived and is to be dismissed. However, if there is a scheme dispute then I will proceed to determine the application. 68 As stated at the outset, the application before the Tribunal is an application under s 197(4) of the ST Act to resolve a scheme dispute. One requirement for invoking s 197(4) is that there is a 'scheme dispute'. 69 Section 197(1) of the ST Act sets out the disputes that fall within that term, and s 197(3) sets out the disputes that are not scheme disputes. Mr and Mrs Wilkinson's position 70 Mr and Mrs Wilkinson's main contention is that, from early in the proceeding, their position has remained unchanged that works may proceed to make Lot 9's balcony compliant with the NCC provided that the council (strata company) bear the cost. However, in contrast, Mr and Mrs Wilkinson in their closing written submissions submit there is no 'scheme dispute' capable of resolution under the ST Act and therefore the strata company's application should be dismissed by the Tribunal.34 71 Mr and Mrs Wilkinson say that the strata company, by way of its agent BMS, made representations to its insurer, CHU, that the council would cover the cost of the works in respect of Lot 9's balcony alteration. Mr and Mrs Wilkinson say that those representations were first made in respect of the renewal of insurance for the June to December 2025 period and again for the period December 2025 to June 2026 and rely on the following emails:35 (a) In an email dated 24 November 2025, Mr Amaranti of BMS to Ms Inge Schaefer of CHU stated:36 8. Lot 9 - the [council] have agreed to pay for the rectification work for this unit prior to the pending SAT tribunal hearing. This will be lodged as an application to the City of Perth ASAP and work will begin as soon as the planning is approved. 34 Mr and Mrs Wilkinson's closing written submissions filed on 20 May 2026 at page 9. 35 Ibid at pages 7 to 8. 36 Exhibit 2 at page 148. -- 24 of 61 -- [2026] WASAT 94 Page 25 (b) In response Ms Schaefer by email dated 25 November 2025, to Mr Amaranti stated:37 At the last renewal period CHU issued the conditions below: 1. Confirm are there any other remaining unit/s besides Unit 13 and Units noted below that still need to get the Balcony defect up to code, as per the ABBC Building Report dated 13/4/21? … 4. Lot 9 - the [council] have agreed to pay for the rectification work for this unit prior to the pending SAT tribunal hearing. This will be lodged as an application to the City of Perth ASAP and work will begin as soon as the planning is approved. 2. Provide quote/s for rectification of balcony for Unit 13. 3. Provide evidence of specialist engagement or invoice for completed rectification of works at Unit 13. Your urgent attention to these requirements will assist us. … Payment representation to CHU 72 As a matter of fairness and compliance with its insurance obligations, Mr and Mrs Wilkinson say the strata company should be held to the representation it made to CHU, that the council (strata company) agreed to pay for the rectification work in respect of Lot 9's balcony alteration. 73 Mr and Mrs Wilkinson say that, given the strata company's representation to CHU, it would be inconsistent with the strata company's role and obligations for it to be allowed to depart from that representation. They say departure would cause them detriment and the strata company has incurred legal costs which will ultimately be borne by all lot owners. They also reject the strata company's contention that the representations made to CHU are irrelevant because reimbursement may be sought, for the following reasons: (a) the representations to CHU are clear and determinative, providing that the council (strata company) will pay for the 37 Exhibit 2 at pages 146 to 147. -- 25 of 61 -- [2026] WASAT 94 Page 26 relevant works without qualification or condition as to reimbursement; (b) there is no claim for reimbursement before the Tribunal and in any event falls outside the scope of the application; and (c) any attempt by the strata company to depart from its representations to CHU or to pursue reimbursement risks non- compliance with its insurance obligations. 74 Because of the above representations made by Mr Amaranti and Ms Schaefer, and because Mr and Mrs Wilkinson say that the council (strata company) should bear the cost of any work to Lot 9's balcony alteration, they submit that the matter before the Tribunal has a straightforward solution - the strata company should comply with the representations its council made to CHU and therefore pay for the work to make Lot 9's balcony compliant. They say this straightforward solution is supported by the material before the Tribunal, accords with legal principles, and prevents the strata company from engaging in conduct that could otherwise void the insurance policy. 75 Mr and Mrs Wilkinson refer to CHU's Product Disclosure Statement38 which provides that the strata company is insured for legal fees only in matters where it is the respondent. In this case, the strata company is the applicant and it is therefore not insured for its legal costs. 76 Consequently, Mr and Mrs Wilkinson submit in their closing written submissions that: (a) there is no 'scheme dispute' capable of resolution under the ST Act and no basis to support the strata company's application under s 197(1) of the ST Act; and (b) the strata company's application should be dismissed. Strata company's position 77 The strata company submits the 'scheme dispute' is best described as:39 38 Exhibit 3 at pages 99 to 100. 39 The strata company's closing written submissions filed on 7 May 2026 at page 3. -- 26 of 61 -- [2026] WASAT 94 Page 27 a dispute between the [s]trata [c]ompany and the Wilkinsons about whether the subject [b]alcony [Lot 9's balcony] needs to be rendered compliant with the [NCC] C2.6, and if so, who should pay for that. Consideration as to whether there is a 'scheme dispute' 78 It is useful to start by considering s 197(1) and 197(3) of the ST Act. Broadly, s 197(1) of the ST Act sets out nine types of scheme disputes and s 197(3) of the ST Act sets out seven types of disputes which are not scheme disputes for the purposes of ST Act. 79 There is no contest between the parties, as scheme participants (being the strata company and the owners of Lot 9) that they are in dispute. What is in contest is whether the dispute is a 'scheme dispute' for the purposes of s 197(1) of the ST Act. 80 Mr and Mrs Wilkinson's position is that there is no scheme dispute capable of resolution under the ST Act.40 With respect, whether the dispute is capable of resolution is not a requirement of s 197(1) of the ST Act. However, whether the dispute is capable of resolution may be a relevant consideration when deciding whether or not to exercise the Tribunal's discretion to make an order under s 200 of the ST Act to resolve the dispute or proceeding. 81 The functions and obligations of the strata company under the ST Act, some of which are mandatory, include: (a) the strata company must control and manage the common property for the benefit of all the owners of lots, and maintain and keep the common property in good and serviceable repair (s 91(1) of the ST Act); (b) the strata company must ensure all insurable assets of the strata scheme are insured (s 97(1) of the ST Act); and (c) the strata company may enforce the scheme by-laws (s 47 of the ST Act). 82 I find that the dispute giving rise to the application in this proceeding concerns two claims: (a) firstly, the claim by the strata company that Lot 9's balcony alteration does not comply with the NCC (and the UBBL) and is therefore an alteration to the lot which is not authorised under the 40 Mr and Mrs Wilkinson's closing written submissions filed on 20 May 2026 at page 9. -- 27 of 61 -- [2026] WASAT 94 Page 28 ST Act or the scheme by-laws. For example, where there is no building licence for the balcony alteration, the strata company if it is unable to secure the required insurance for the strata building will be in contravention of the ST Act; and (b) secondly, the claim by Mr and Mrs Wilkinson that the costs to make Lot 9's balcony compliant with the NCC should be paid by the strata company (for example out of the strata company's administrative or reserve fund). 83 The dispute may therefore, in my view, be characterised, for the purposes of s 197(1)(a) of the ST Act as a dispute about: (a) the failure of Mr and Mrs Wilkinson to remedy Lot 9's balcony (due to the balcony alteration) to comply with the NCC which will cause the strata company to contravene the ST Act if does have in place the required insurance for the strata building, a matter arising under the ST Act or scheme by-laws; and (b) whether (independent of any claim about the performance of Mr and Mrs Wilkinson) the cost of the work to make Lot 9's balcony compliant (which is not common property) ought to be paid from the strata company's administrative or reserve fund, a matter arising under the ST Act or scheme by-laws. 84 For the above reasons, I am satisfied and find the dispute between the strata company and Mr and Mrs Wilkinson falls within and may be characterised as stated in s 197(1)(a)(vi) of the ST Act as a dispute about: any other matter arising under this Act or the scheme by-laws. 85 Section 197(3) of the ST Act does not exclude the above characterisation of the dispute. I therefore find that the dispute described in the preceding two paragraphs is a 'scheme dispute' between the parties, who are scheme participants, for the purposes of s 197(1)(a) of the ST Act. 86 Finally, returning to Mr and Mrs Wilkinson's contention that the strata company should be held to the representation it made to CHU, that the council (strata company) agreed to pay for the rectification work in respect of Lot 9's balcony alteration. I reject their contention because Mr Amaranti's email to Ms Schefer on 25 November 2025 states:41 41 Exhibit 2 at page 145. -- 28 of 61 -- [2026] WASAT 94 Page 29 The Unit 13 [Lot 9] is not rectified and this is the one that is a part of the SAT tribunal. The COO have agreed to pay to get this done if CHU confirm they'll [c]over renewal. 87 It is clear that Mr Amaranti in the above email states that the council will pay if CHU confirm they will renew the insurance. There is a clear qualification or condition before any payment is to be made. Mr and Mrs Wilkinson's statement that the representations to CHU are clear and determinative that the council will pay for the relevant works without qualification or condition as to reimbursement is not correct, but rather, a self-serving statement. Whether the application can be determined under s 197(4)? 88 Finally, I work through s 197(4) of the ST Act to determine whether the Tribunal has jurisdiction to determine the application. 89 Importantly, to invoke s 197(4) of the ST Act, there must be: (a) a 'scheme dispute' (s 197(1) and not excluded by s 197(3) of the ST Act); (b) 'scheme participants' (s 197(2) of the ST Act); and (c) the application can be made by a party to the dispute (s 197(4) of the ST Act). 90 I am satisfied that the Tribunal has jurisdiction to determine the dispute for the following reasons. 91 First, as set out earlier there is a scheme dispute (see above at [78] to [85]). 92 Second, the strata company and each of the lot owners, including Mr Little as a lot owner and the original applicant, are scheme participants within the meaning of s 197(2) of the ST Act. 93 Third, Mr Little as a lot owner is the party who made the application originally to the Tribunal under s 197(4) of the ST Act. Ultimately, the Tribunal removed Mr Little as the applicant (party) and ordered the strata company to be the applicant pursuant to s 38(1) of the ST Act. 94 Finally, for completeness, I note that even if Mr Little remained as the first applicant and the strata company was joined as the second applicant or as a respondent, in my view, the Tribunal still has -- 29 of 61 -- [2026] WASAT 94 Page 30 jurisdiction to resolve the scheme dispute for the same reasons as set out in the previous paragraphs. Conclusion - jurisdiction issues 95 For all of the above reasons, I am satisfied that a scheme dispute exists and the Tribunal has jurisdiction to determine the dispute or proceeding. I am also satisfied that the strata company is authorised to continue the proceeding as the applicant and that Mr Caine and Ms Carnegie should not remain as parties to the proceeding and I therefore remove them. 96 I turn now to work through each of the other issues (see above at [36]) which will ultimately lead to my decision. Lot boundary issue Whether the balcony and balcony alteration is part of Lot 9? 97 Mr and Mrs Wilkinson made no submissions about whether the balcony is contained within Lot 9 or is common property. 98 The strata company's position is that the balcony of Lot 9 is contained wholly within the lot and that any alteration to the balcony constitutes an alteration to the lot and is therefore not common property.42 99 The strata company submits that, when the strata plan was registered, the balconies were not enclosed. It says that, over an unknown period, the owners of 37 of the 75 lots enclosed or altered their balconies. This includes Lot 9, where the balcony was enclosed or altered (the balcony alteration) by prior owners before Mr and Mrs Wilkinson purchased Lot 9. What is the boundary of Lot 9? 100 It is useful to start by considering the terms 'lot' and 'common property' under the 1966 Act, being the Act under which the strata plan was registered. 101 The terms 'lot' and 'common property' were defined in s 3 of the 1966 Act as follows: 'lot' means a lot shown as such on a strata plan[.] 42 Exhibit 1 at page 264. -- 30 of 61 -- [2026] WASAT 94 Page 31 'common property' means so much of the land for the time being comprised in a strata plan as is not comprised in a lot shown in the plan[.] 102 According to s 5 of the 1966 Act, the strata plan shall: …. (d) define the boundaries of each lot in the building by reference to floors, walls and ceilings, without necessarily showing any bearings or dimensions of the lot[.] 103 The floor plan for the strata plan comprises 10 sheets, each depicting the lots on a particular floor. The lots are identified by unbroken lines. None of the 10 sheets includes a notation or description identifying the boundary of a lot. None of the sheets denotes or describes a balcony. Finally, the only reference to common property on the strata plan is the garage, which is noted as 'common property' on the Form 1. 104 The 1966 Act was repealed on 30 June 1985 and the Strata Titles Act 1985 (WA), as it was before 1 May 2020 (Prior Act), came into force. The Prior Act provides that strata schemes created under the 1966 Act continue to exist. 105 In the Prior Act, s 3(1) defined the term 'floor plan' as follows: floor plan means a plan, consisting of one or more sheets, which - (a) defines by lines … the base of each vertical boundary of every cubic space forming the whole of a proposed lot, or the whole of any part of a proposed lot, to which the plan relates; and (b) shows - (i) the floor areas of any such cubic space; and (ii) where any such cubic space forms part only of a proposed lot, the aggregate of the floor areas of every cubic space that forms part of the proposed lot[.] 106 Then in s 3(2) of the Prior Act the boundaries of any cubic space referred to in para (a) of the definition of floor plan is: (a) except as provided in paragraph (b) - (i) are in the case of a vertical boundary, where the base of any wall corresponds substantially with any line referred to in paragraph (a) of that definition - the inner surface of that wall; and -- 31 of 61 -- [2026] WASAT 94 Page 32 (ii) are, in the case of a horizontal boundary, where any floor or ceiling joins a vertical boundary of the cubic space - the upper surface of that floor and the under surface of that ceiling; or (b) are such boundaries as are described on a sheet of the floor plan relating to that cubic space (those boundaries, being described in the prescribed manner by reference to a wall, floor or ceiling in a building to which that plan relates or to structural cubic space within that building). 107 The ST Act has retained the definition of 'floor plan' as set out in s 3(1) and s 3(2) of the Prior Act. 108 As stated above, the boundaries are not described in any of the 10 sheets of the floor plan. Section 3(2)(b) of the ST Act and the Prior Act therefore does not apply. Consequently, in my view, the boundary of each lot comprises the inner surface of the perimeter walls shown on the floor plan by unbroken lines, the upper surface of the floor and the under surface of the ceiling, as provided for in s 3(2)(a) of the ST Act and the Prior Act. 109 The strata company referred to photographs43 to demonstrate the original balustrading and concrete upstands. These are annotated on the plans.44 There was no challenge by Mr and Mrs Wilkinson. Applying s 3(2)(a) of the ST Act, I find the inner surface of the balustrading to be the outer vertical boundary of the balcony. Conclusion - lot boundary issue 110 In conclusion, I find the balcony and the balcony alteration form part of Lot 9. The balcony of Lot 9 is therefore not common property. 111 Next, I turn to consider a number of compliance issues - in particular whether an alteration was made to Lot 9's balcony, whether Lot 9's balcony is required to comply with the NCC or the former UBBL, whether there is a building licence for Lot 9's balcony alteration and if so, whether the balcony alteration complies with that licence, and finally who is required to make Lot 9's balcony compliant and who is required to pay for that work. 43 Exhibit 4 at pages 56 to 66. 44 Exhibit 4 at pages 19 and 20. -- 32 of 61 -- [2026] WASAT 94 Page 33 Compliance issues Whether an alteration was made to Lot 9's balcony? 112 It is uncontroversial, and I find, that alterations were made to the balcony of Lot 9. Those alterations comprise an aluminium-framed glazed sliding door and window with a fixed pane on one side, which were moved out close to their current location near the balustrade to enlarge the internal space (the balcony alteration).45 113 It is also uncontroversial, and I find, that other owners completed the balcony alteration before Mr and Mrs Wilkinson purchased Lot 9 in or about March 2015. I further find that other owners carried out the balcony alteration sometime after registration of the strata plan on 8 July 1968 but before March 2015. The 1966 Act applied to part of that period and the Prior Act applied from 30 June 1985. The 1966 Act did not require the strata company approval for alterations to a lot, unlike under the Prior Act. 114 As stated earlier in these reasons, and is repeated here, the strata company's position is that the balcony alteration constitutes an alteration to Lot 9. However, the strata company says that there is no record of approval for the balcony alteration by either by the strata company or by the relevant local authority, the City of Perth. 115 In contrast, Mr and Mrs Wilkinson say the strata company approved Lot 9's balcony alteration (see below at [147] to [148]). 116 In conclusion, I find that owners altered Lot 9's balcony before Mr and Mrs Wilkinson purchased Lot 9. The balcony alteration involved moving the aluminium-framed glazed sliding door and window, with a fixed pane on one side, close to their current location near the balustrade to enlarge the internal space (the balcony alteration). 117 Given the location of the balcony alteration, I find it to be an alteration to Lot 9 and not to common property. Whether Lot 9's balcony is required to comply with the NCC? Mr and Mrs Wilkinson's position 118 In their closing written submissions, Mr and Mrs Wilkinson submit that the applicable building regulations are those in existence at the time 45 ts 16, 11 February 2026. -- 33 of 61 -- [2026] WASAT 94 Page 34 of construction, by application of regs 31A(2) and 31E(2) of the Building Regulations 2012 (WA) (Regulations). Because Lot 9's balcony alteration was done well before the NCC was adopted on 1 May 2016. Mr and Mrs Wilkinson say that the NCC cannot apply in this case. Consequently, Mr and Mrs Wilkinson submit that: (a) the standards set out in the NCC do not apply to Lot 9's balcony or to the balcony alteration; (b) the approach adopted by Mr Viska in assessing Lot 9 in accordance with the NCC cannot be relied upon. This is because Mr Viska's opinion in no way overcomes the statutory prerogative of Parliament which clearly establishes that the building standards to be applied are those at the time when the balcony alteration was done; and (c) no material provided by the strata company assesses Lot 9 at the time of the Balcony alteration. 119 In the alternative, if the NCC does apply, Mr and Mrs Wilkinson submit that the proper construction of the NCC 2.6 is that if the gap between the top of the lower Lot's opening and the bottom of the upper Lot's opening is less than 450mm then separation as specified in the remainder of cl 2.6 must occur. Clause 2.6 therefore sets a precondition that the gap between the lots must be 450mm or less before any further requirement in cl 2.6 is triggered. 120 Mr and Mrs Wilkinson also rely on the following matters: (a) Mr Viska gave evidence that no measurements were taken during his assessment of Lot 9; (b) the report by Mr Booth of ABBC Building Inspectors does not state that any measurements were taken or that the gap between the two units was 450 mm or less; and (c) CHU does not require the balcony to comply with the NCC, but with the relevant regulations applicable at the time of construction as stated by CHU to Mr Amaranti on 26 September 2025 as follows:46 Please be advised that, from an insurance standpoint, confirmation is required that all the balconies comply with the 46 Exhibit 2 at page 215. -- 34 of 61 -- [2026] WASAT 94 Page 35 regulations applicable at the time of construction in order for us to consider offering renewal terms. … 121 Because of the above matters, Mr and Mrs Wilkinson say: (a) the evidence of Mr Viska, his report (BCA memorandum) and Mr Booth's report cannot be relied on; (b) the strata company has not provided satisfactory evidence nor a proper assessment of Lot 9 at the time of the balcony alteration, sufficient to overcome the strata company's burden of proof; (c) the strata company has failed to establish that Lot 9's balcony breaches the NCC 2.6; and (d) in any event, compliance with the NCC by Mr and Mrs Wilkinson is not a requirement to be insured by CHU. 122 Mr and Mrs Wilkinson contend that even if it is established that Lot 9's balcony is not compliant with the NCC, the strata company has not, and cannot point to any outcome or consequence as a result of the failure of compliance. This is because the NCC is a set of technical provisions for building works across Australia and therefore does not have the status of law and does not have any legal or administrative remedies to cause them to do anything. 123 Finally, in contrast to the strata company's position, Mr Wilkinson asserts that CHU has continually provided insurance for the strata complex since at least 2016 and that there is no documentation or correspondence stating that CHU will no longer provide insurance. At the final hearing, Mr Wilkinson rejected the proposition that the failure of owners to undo balcony alterations has made it more difficult for the strata company to obtain insurance. Strata company's position 124 The strata company submits that Lot 9's balcony must comply with the NCC. The strata company's main contentions are: 125 First, Mr Viska testified that Lot 9's balcony is not compliant. Mr Viska explained that without a building licence for Lot 9's balcony alteration and without compliance with the conditions of any such licence, Lot 9's balcony does not comply with the NCC, including the UBBL. Mr and Mrs Wilkinson did not adduce any contrary, qualified -- 35 of 61 -- [2026] WASAT 94 Page 36 evidence. Consequently, the strata company submits that it is axiomatic that the non-compliant building work needs to be made compliant with the NCC. 126 Second, the strata company says it will not be able to secure insurance after 30 June 2026 unless Lot 9's balcony complies with the NCC. The strata company relies on Mr Little's evidence that CHU has been concerned since about July 2024 about insuring the strata scheme because of balcony alterations, and that such balcony alterations have made obtaining insurance more difficult for many years. The strata company also relies on CHU having only renewed the policy for a six-month period to 30 June 2026 and only had done so on the condition that Lot 9's balcony was made compliant whereas previously insurance was offered for 12-month periods. The strata company submits that non-renewal or cancellation of the insurance policy would place it in breach of s 97(1) of the ST Act and expose it to claims by scheme participants, for example lot owners, for any loss sustained by them. The strata company says that its strata manager had informed Mr and Mrs Wilkinson of the consequences if the CHU cancelled or did not renew its insurance policy, including the impact on mortgages and property sales as well as exposure to all lot owners in the event of a claim.47 127 Third, Mr and Mrs Wilkinson failed to comply with notices given to them by the strata company via its strata manager under s 98 of the ST Act. The notices were issued on or about 17 October 2024, 11 February 2025 and 16 October 2025. The notices taken together with the application filed with the Tribunal on 25 March 2025 require Mr and Mrs Wilkinson to have Lot 9's balcony comply with the NCC because failure to do so will result in CHU cancelling or not renewing the insurance policy for the strata company which would result in the strata company contravening s 97 of the ST Act. Consideration of whether Lot 9's balcony is required to comply with the NCC 128 According to Mr Viska, the strata complex building was constructed in or about 1966 to 1967 (and officially opened on 20 December 1967). Further, Mr Viska stated that the building, being a Class II building was mostly likely designed and built to the requirements of the UBBL as it was in 1965.48 Mr Booth in his report also referred to the UBBL as it was 47 Exhibit 1 at pages 462 to 463. 48 Exhibit 1 at pages 350 to 351. -- 36 of 61 -- [2026] WASAT 94 Page 37 in 1965.49 Mr and Mrs Wilkinson did not provide any evidence to the contrary. 129 The UBBL as it was in 1965 provided:50 347. Vertical Separation - (1) Any opening in an external wall of a building Type 1 or 2 Construction which is situate vertically above another opening that wall and not protected by a one-hour fire door, one-hour fire window or a shutter complying, as the case may be, with the requirements of by-law 175, 176 or 177 of these by-laws, shall have not less than 3 ft. of solid masonry or concrete between the bottom of that opening and the top of the opening next below it. (2) The masonry or concrete separating two openings under the provisions of sub-bylaw (1) of this by-law may be comprised of a horizontal projection of not less than 2 ft. beyond the face of the wall but shall have a fire-resistance rating, in the case of buildings of Class I, II, III or IV Occupancy, of not less than 2 hours and, in the case of building of Class V, VI, VII or VIII Occupancy, of not less than three hours. 130 Mr Viska gave clear evidence that Lot 9's balcony, before the balcony alteration, met the requirements of the UBBL (as set out in the preceding paragraph) because a horizontal spandrel provided the required separation. Mr Booth's report supports that evidence: he concluded that the original construction design provided for adequate fire separation. Mr and Mrs Wilkinson do not challenge that evidence. I therefore find that Lot 9's balcony, before the balcony alteration, complied with the (then) UBBL. 131 The UBBL was reissued in 1974 and relevantly provided:51 Vertical Separation of Openings in External Walls Application of By-law 22.3: (1) This by-law shall apply to building of Type 1 and Type 2 construction, but shall not extend to: - 49 Exhibit 1 at pages 294 to 307. 50 Exhibit 1 at page 86. 51 Exhibit 1 at page 86. -- 37 of 61 -- [2026] WASAT 94 Page 38 (a) a building or portion of a building designed, constructed, or adapted as an open-deck parking station; or (b) openings above one another within a stairway. Alternative Methods of Separation (2) Where any part of an opening in an external wall is situated vertically above another opening in the storey next below, there shall be provided between those openings - (a) a spandrel or other vertical construction not less than 900 mm in height and complying with the following conditions - (i) the construction shall extend not less than 600 mm above the upper surface of the intervening floor; (ii) the construction shall comprise non- combustible material having the relevant fire- resistance rating prescribed for external walls by Table 16.7 (in the case of Type 1 construction) or Table 16.8 (in the case of Type 2 construction); (iii) there shall be no voids between the edge of the floor and the inside face of the spandrel or other vertical construction, as the case may be; or (b) a slab or other horizontal construction that - (i) projects outwards from the face of the wall for a distance of not less than 1050 mm; (ii) extends along the wall not less than 450 mm beyond the lateral limits of the opening concerned; and (iii) is non-combustible and has a fire-resistance rating of not less than one hour. 132 The UBBL was repealed on 28 July 1989 and replaced by the Building Regulations 1989 (WA) (Building Regulations 1989). 133 Under reg 5(2) of the Building Regulations 1989, any building alteration, addition, or restoration is required to conform to the National Building Code of Australia (BCA). Local councils retained the power to waive BCA requirements only if the alteration was deemed 'minor work' -- 38 of 61 -- [2026] WASAT 94 Page 39 that did not negatively impact safety. The balcony alteration is not minor work. 134 In 2011 the BCA transitioned into the NCC when the Australian Building Codes Board consolidated building and plumbing regulations into a single code. The inaugural NCC comprised Volume 1 and 2 (BCA) and Volume 3 (The Plumbing Code of Australia). Volume 1 and Volume 2 of the NCC are still known as the BCA. 135 The Building Act 2011 (WA) (BA Act) and the Building Regulation 2012 (WA) provide that all major alterations require a building permit and compliance with the NCC. 136 It was sometime after the strata complex building was constructed in or about 1967 but before Mr and Mrs Wilkinson purchased Lot 9 in 2015 that Lot 9 had the balcony alteration done. 137 While Mr and Mrs Wilkinson assert that the NCC cannot apply to the balcony alteration because that work was done well before the NCC was adopted. That position may be correct if there was a building licence/permit for the balcony alteration. 138 Mr Wilkinson and Mr Mickelberg testified that they could not find a building licence, permit or planning approval for Lot 9's balcony alteration. Mr Viska also testified that was not aware of any planning approval or building approval (or building licence) for Lot 9's balcony alteration. For the reasons set out below (see below at [151] to [165]), I find there is no building licence or building approval for Lot 9's balcony alteration. 139 The consequence of not having a building approval (or a building licence) for Lot 9's balcony alteration is that Lot 9's balcony alteration is 'unauthorised work' as that term is defined in s 51(1) of the BA Act. That section provides: unauthorised work means work - (a) that was done without an authority under a written law that was required by the written law applicable at the time the work was done; or (b) that did not comply with an authority under a written law that was in effect in respect of the work; work means - -- 39 of 61 -- [2026] WASAT 94 Page 40 (a) building work; or (b) demolition work in respect of a part of a building; or (c) demolition work in respect of a part of an incidental structure. 140 The term 'building work' is defined in s 3 of the BA Act as follows: building work means - (a) the construction, erection, assembly or placement of a building or an incidental structure; or (b) the renovation, alteration, extension, improvement or repair of a building or an incidental structure; or (c) the assembly, reassembly or securing of a relocated building or a relocated incidental structure; or (d) the changing of ground levels of land for the purposes of work of a kind mentioned in paragraph (a), (b) or (c) to an extent that could adversely affect land beyond its boundaries; or (e) site work on any land for the purposes of, or required because of, work of a kind mentioned in - (i) paragraph (a), (b), (c) or (d); or (ii) paragraph (a) or (b) of the definition of demolition work; or (f) other prescribed work, but does not include work of a kind prescribed for the purposes of this definition as not being building work. 141 Subject to a few exclusions which do not apply in this case, s 9 of the BA Act provides that building work must not be undertaken unless a building permit is in effect for the building work. 142 It is clear from Mr Viska's evidence, that has not been contradicted by Mr and Mr Wilkinson, that without a building licence for the balcony alteration and without compliance with the conditions of that building licence, the balcony of Lot 9 is not compliant with the UBBL and the NCC. Therefore, to regularise the balcony alteration today, an application for a retrospective building approval certificate under s 51 of the BA Act is required which requires compliance with the current NCC -- 40 of 61 -- [2026] WASAT 94 Page 41 2025 (Volume 1, Section C Fire Resistance, Part C3 Compartmentation and Separation) as follows: C3D7 Vertical separation of openings in external walls (1) If in a building of Type A construction, any part of a window or other opening in an external wall is above another opening in the storey next below and its vertical projection falls no further than 450 mm outside the lower opening (measured horizontally), the openings must be separated by - (a) a spandrel which - (i) is not less than 900 mm in height; and (ii) extends not less than 600 mm above the upper surface of the intervening floor; and (iii) is of non-combustible material having an FRL of not less than 60/60/60; or (b) part of a curtain wall or panel wall that complies with (a); or (c) construction that complies with (a) behind a curtain wall or panel wall and has any gaps packed with a non- combustible material that will withstand thermal expansion and structural movement of the walling without the loss of seal against fire and smoke; or (d) a slab or other horizontal construction that - (i) projects outwards from the external face of the wall not less than 1100 mm; and (ii) extends along the wall not less than 450 mm beyond the openings concerned; and (iii) is non-combustible and has an FRL of not less than 60/60/60. (2) The requirements of (1) do not apply to - (a) an open-deck carpark; or (b) an open spectator stand; or (c) a building which has a sprinkler system (other than a FPAA101D or FPAA101H system) complying with Specification 17 installed throughout; or -- 41 of 61 -- [2026] WASAT 94 Page 42 (d) openings within the same stairway; or (e) openings in external walls where the floor separating the storeys does not require an FRL with respect to integrity and insulation. (3) For the purposes of C3D7, window or other opening means that part of the external wall of a building that does not have an FRL of 60/60/60 or greater. 143 Mr Viska disputes Mr and Mrs Wilkinson's view that the NCC does not apply to Lot 9's balcony alteration. This is because there is no lawful building approval for the balcony alteration. Mr Viska explained that if there was a lawful building approval (building licence) in place at the time the work was done, which may have been as early as 1969, then the NCC would not apply and the relevant building licence would overrule.52 Mr Viska explained it this way:53 So whatever the City of Perth approved on the building licence would be the deciding factor, not the Uniform Building By-laws, because the City then would have made a decision, and stamped some plans, and approved whatever they approved. … But if the City of Perth, in 1969, issued an approval that showed these balconies being enclosed as Unit 13 is, without - so at the moment, that doesn't have a horizontal spandrel, which the Uniform Building By-laws required. So at the moment, it doesn't comply with these previous provision. But if you've got a building licence that does approve it, then to me, that is the City of Perth have made a decision, on whatever ground, to approve a certain form of construction[.] 144 I make the following findings: (a) The strata complex building has never had sprinklers (which would exempt the need for vertical spandrels (separation between two floors) as a measure to control fire spread between one lot above and below). (b) Prior to Lot 9's balcony alteration, the balcony was compliant with the UBBL as there was a horizontal spandrel (a spandrel that extends beyond both the top and the underside to provide some mitigation to fire spreading). 52 ts 33, 11 February 2026. 53 ts 33 - 34, 11 February 2026. -- 42 of 61 -- [2026] WASAT 94 Page 43 145 In conclusion, Mr and Mrs Wilkinson rely on the proposition that a building licence must have issued for the balcony alteration, although no such licence can be located. They did not present any expert evidence contradicting Mr Viska's evidence. On balance, I accept Mr Viska's evidence. I therefore find that Lot 9's balcony does not comply with the (then) UBBL or the NCC. Whether there is a building licence and if so, whether Lot 9's balcony alteration is compliant with that licence? 146 The parties agree, and I find that a building licence, if there was one, for Lot 9's balcony alteration has not been located. This is after extensive efforts were undertaken by Mr Wilkinson, Mr Mickelberg and others, since 2016,54 to locate all relevant records in relation to alterations to balconies in the strata scheme. The extensive efforts included reviewing records held by the strata company, by the City of Perth and the State Library of Western Australia.55 Mr and Mrs Wilkinson's position 147 Despite significant efforts to locate a building licence, Mr and Mrs Wilkinson contend that a building licence must have issued in regard to Lot 9's balcony alteration by relying on the following: (a) many balconies in the strata scheme were altered - some 37 balconies within the same period and it would therefore be improbable and peculiar for works of such scale and uniformity to have been carried out without obtaining the requisite approvals; (b) the letter addressed to the secretary of the strata company from a firm of architects, Krantz and Sheldon, dated 20 November 1969 (1969 letter) which states in part:56 … with regard to the balcony sliding doors, we wish to advise that this matter will be taken up with the Building Surveyor of the Perth City Council immediately … (c) a plan drawn by Krantz and Sheldon dated 24 November 1969 with the notation (1969 plan):57 54 The strata company's closing written submissions filed on 7 May 2026 at page 12. 55 ts 48 to 75 and 103 to 114, 11 February 2026. 56 Exhibit 1 at page 427. 57 Exhibit 1 at page 431. -- 43 of 61 -- [2026] WASAT 94 Page 44 proposed alum. windows to all private balconies[.] (d) the apparent absence or removal of a page or pages adjacent to the 1969 letter in the records held by the State Library of Western Australia (State Library);58 and (e) the following update provided by Mr Mickelberg per the minutes of the meeting of the council held on 6 February 2023:59 Peter provided an update on the enclosed balcony changes (unit 91) which [c]ouncil approved many years ago although no evidence is available. 148 Further, Mr and Mrs Wilkinson submit that no weight should be afforded to the plans relied upon by the strata company because: (a) the plans were filed at a late stage of the proceeding (filed on 9 February 2026 two days before the final hearing); (b) the provenance of the plans has not been established; (c) the documents appear disordered and the reverse sides of certain documents - which may contain original plans or relevant information - have not been provided; and (d) certain documents did not contain an official stamp, such as the City of Perth stamp. The strata company's position 149 The strata company contends that the above matters relied upon by Mr and Mrs Wilkinson, taken individually or together, do not provide an adequate rational basis to reach the conclusion that a building licence must have been issued for Lot 9's balcony alteration. 150 The strata company submits that at their highest, the above matters might support a conclusion that: (a) in 1969, the strata company engaged with Krantz and Sheldon to prepare plans showing the feasibility of having sliding aluminium doors on balconies and that a representative of Krantz and Sheldon planned to discuss this with a representative of the City of Perth; and 58 Exhibit 1 at page 428. 59 Exhibit 1 at page 401. -- 44 of 61 -- [2026] WASAT 94 Page 45 (b) at an unknown time, some but not all owners, altered their balconies. Consideration of whether there is a building licence for Lot 9's balcony alteration 151 On balance, I am not persuaded that any of the matters relied upon by Mr and Mrs Wilkinson taken individually or together support the conclusion they urge me to reach that a building licence must have issued for Lot 9's balcony alteration. I respectfully agree with the position of the strata company for the following reasons. 152 First, while it is uncontroversial that other owners altered the balcony on their lots, there is no evidence before the Tribunal as to those alterations and whether a building licence was granted to any of those lot owners for alterations to their balconies. 153 Second, the 1969 letter and 1969 plan reflect that the strata company had engaged Krantz and Sheldon in 1969 to prepare plans showing proposed aluminium window frames with sliding glass doors. The plans clearly state they form part of a 'feasibility study and remain the exclusive property of Krantz & Sheldon', as stamped on the plan, and that a representative of Krantz & Sheldon (L. West) was to discuss the balcony sliding doors with the building surveyor at the City of Perth. Nothing in the 1969 letter nor the 1969 plan states that a building licence in respect of Lot 9 issued or would be issued. 154 Third, the 1969 plan does not contain any stamp by the City of Perth. In contrast, other plans before the Tribunal,60 such as the plan of the basement dated 16 November 1966, is stamped by the City of Perth as approved on 20 January 1967 and refers to building permit number 90167. On this basis, I find that the City of Perth had in place a process of stamping plans it approved and, as the 1969 plan was not stamped by the City of Perth, the only reasonable inference that can be made is that the City of Perth did not approve that plan. Further, unlike the plans stamped by the City of Perth, the 1969 plan clearly states it remained the property of Krantz & Sheldon. 155 Fourth, apart from the questioning of Mr Mickelberg and Mr Little as to whether they had removed pages61 from the records held by the State Library, which they both strongly denied, a copy of 60 Exhibit 1 and 3. 61 Exhibit 1 at page 428. -- 45 of 61 -- [2026] WASAT 94 Page 46 the State Library's register of access to documents was not before the Tribunal which would have identified who accessed documents. 156 Fifth, the City of Perth's record keeping has the 1966 approved plans for the original construction of the building for the strata complex some 58 or so years ago, yet the same record keeping does not have records for Lot 9's balcony alteration.62 There is no evidence before the Tribunal that the City of Perth's record keeping was inadequate. Consequently, the only reasonable inference that can be made is that there are no plans approved by the City of Perth for Lot 9's balcony alteration. 157 Sixth, Mr Mickelberg was not questioned about what he said in his update to the council meeting of 6 February 2023. However, Mr Wilkinson conceded in cross-examination63 that in referring to Mr Mickelberg's update of the balcony alteration to the council meeting of 6 February 2023, that he had omitted the words 'although no evidence is available' in paragraph 4 of his witness statement where he wrote in capital letters 'COUNCIL APPROVED MANY YEARS AGO'. Further, and importantly, Mr Wilkinson in his witness statement and in giving evidence made no reference to item 5.6 of the minutes which is titled 'Balcony doors non-compliant letter to owners'. The relevant part of item 5.6 is: The [c]ouncil noted that non-compliant balcony doors are a historic issue and that there is no evidence of either the [s]trata manager at that time and the City of Perth approving them. 158 When I read the minutes of 6 February 2023 as a whole, particularly item 5.6, I do not accept that paragraph 4 of Mr Wilkinson's witness statement accurately records the council's position. Rather, I find paragraph four of Mr Wilkinson's witness statement presents a selective account and is self-serving. 159 Seventh, Mr and Mrs Wilkinson did not challenge the strata company's position that Lot 9's balcony alteration is (also) not compliant with the (then) UBBL because there is no building licence for Lot 9's balcony alteration. On that basis, it is reasonable to infer that the strata company would not have approved Lot 9's balcony alteration if it did not comply with the (then) UBBL. 62 Exhibit 6. 63 ts 142, 11 February 2026. -- 46 of 61 -- [2026] WASAT 94 Page 47 Mrs Wilkinson's handwritten note 15 May 2025 160 Mr and Mrs Wilkinson also rely on a handwritten file note made by Mrs Wilkinson dated 15 May 2025.64 It is a note about a conversation Mrs Wilkinson states that she had with Ms Coral Symes who has been a resident of the strata complex since 1968. According to Mrs Wilkinson's note, the balcony of Lot 4 was pushed out in the 1980s by the builder who was building an extension to the caretaker's lot after seeking approval from the council of the strata company at that time. 161 I place no weight on Mrs Wilkinson's note of 15 May 2025 for the following reasons. 162 First, there is no evidence before the Tribunal as to when the alleged conversation with Mrs Symes occurred and whether Mrs Wilkinson's handwritten note was made contemporaneously with the alleged conversation. 163 Second, Lot 4 is located on the ground floor65 and therefore does not have a balcony which raises doubt as to the accuracy of Mrs Wilkinson's file note. 164 Finally, Mrs Wilkinson chose not to provide a witness statement regarding her note of 15 May 2025 and despite being the second respondent in the proceeding and attending the final hearing, she did not allow herself to be cross-examined on that note. 165 In conclusion, I am not persuaded, on the balance of probabilities, by Mr and Mrs Wilkinson's position. I find that no building licence for Lot 9's balcony alteration is before the Tribunal. I therefore have no basis to determine the conditions of any such building licence and no basis to find that Lot 9's balcony alteration complies with a building licence. Who is required to make Lot 9's balcony compliant with the NCC and who is to pay the cost? Mr and Mrs Wilkinson's position 166 Mr and Mrs Wilkinson contend that the cost of making Lot 9's balcony compliant should be borne by the strata company. They say this is because of the representations made to CHU. 64 Exhibit 1 at page 437. 65 Exhibit 1 at page 27. -- 47 of 61 -- [2026] WASAT 94 Page 48 167 Relying on Jones v Dunkel, Mr and Mrs Wilkinson submit that an adverse inference should be drawn in respect of the failure of the strata company to call Mr Amaranti, Mr Booth and a representative of CHU. Mr and Mrs Wilkinson submit: (a) it was reasonable to call: (i) Mr Amaranti to directly address the representations to CHU; (ii) Mr Booth to confirm the correctness of Mr Viska's report;66 and (iii) a representative of CHU to confirm the position of CHU as to the strata company's insurance policy; (b) no reasonable explanation is provided by the strata company as to why the above witnesses were not called to give evidence, particularly when both Mr Amaranti and Mr Booth were listed as witnesses for the strata company, Mr Amaranti prepared a witness statement and Mr Booth provided the BCA memorandum; and (c) the above listed witnesses had knowledge that would not have assisted the strata company's position in this proceeding or would have otherwise been unfavourable to the strata company. 168 Mr and Mrs Wilkinson further submit that an adverse inference ought to be drawn from the strata company's failure to call Ms Jane Irvine, a member of the council, and Mr James Ryan, an employee of Abode Strata Management, each of whom they say possess unique knowledge of the strata scheme and the strata company's insurance position. 169 Finally, Mr Wilkinson states in his witness statement that, on 19 June 2025, the City of Perth refused an application by the owner of Lot 31 for a fire-rated vertical spandrel behind the existing balustrade with new glazing above. He also stated that, on 11 August 2025, the City of Perth refused an application by the owner of Lot 45 for a fire-rated vertical spandrel and facade window. 66 Exhibit 1 at pages 350 to 351 (referred to as the 'BCA Memorandum' in Mr and Mrs Wilkinsons' closing written submissions filed on 20 May 2026). -- 48 of 61 -- [2026] WASAT 94 Page 49 The strata company's position 170 The strata company refutes any suggestion that it approved Lot 9's balcony alteration and that it is liable for, or should pay the cost of making Lot 9's balcony alteration compliant with the NCC for the following four reasons. 171 First, the strata company did not have any power, authority, duty or function under the 1966 Act to approve or disapprove an alteration to a lot, such as the balcony alteration. The 1966 Act did not contain an equivalent provision to s 87 to s 89 of the ST Act which concerns the structural alteration of a lot including objections and approval of structural alterations. In addition, there is no by-law whether by way of a default by-law under the 1966 Act or otherwise made by the strata company to require lot owners to notify the strata company of proposed alterations to their lot (as compared to conduct by-law 13 under the ST Act which requires the lot owner to give not less than 14 days' notice to the strata company of proposed alteration of the structure of the lot). Accordingly, the strata company submits that Mr and Mrs Wilkinson's contention that the strata company approved the balcony alteration is without legal foundation and cannot be the basis to require the strata company to pay the cost of making Lot 9's balcony compliant. 172 Second, despite extensive searches by the parties over many years, since 2016, there is no evidence before the Tribunal that the strata company authorised Lot 9's balcony alteration. 173 Third, the strata company has no power, duty or function under the ST Act, in particular under s 91, s 94, s 100(1) and s 100(2), to undertake work on Lot 9's balcony (which is not common property) to make it compliant with the NCC, nor to pay for that work. 174 Fourth, requiring all owners in the strata scheme to meet the cost of making Lot 9 compliant with the NCC would be difficult to justify, given that: (a) there are no other circumstances where the strata company would pay an owner to rectify non-compliant or unauthorised building work within their lot; (b) other owners have already made their lots compliant at their own cost; -- 49 of 61 -- [2026] WASAT 94 Page 50 (c) only Mr and Mrs Wilkinson and the previous owners and occupiers of Lot 9 have benefitted from the balcony alteration (where the 'internal' part of Lot 9 was made larger); and (d) to require the strata company to pay for Lot 9's balcony to be compliant with the NCC would financially burden all lot owners, although Mr and Mrs Wilkinson have maintained that the issue is historical and should be resolved pragmatically. Consideration of who is required to make Lot 9's balcony compliant with the NCC and who is to pay the cost 175 I start by considering Mr and Mrs Wilkinson's submission that I should draw adverse inferences from the strata company's decision not to call Mr Amaranti, Mr Booth and a representative of CHU. In my view, no adverse inference can be drawn from the strata company's decision not to call those witnesses, for the following reasons. 176 First, according to Mr Amaranti's witness statement, he was to give evidence on four areas, including that CHU will be unable to offer renewal of the insurance policy if balconies are non-compliant. Evidence of representations made by Mr Amaranti to and from CHU are available in Exhibits 3 and 4 which were obtained by summons requested by Mr and Mrs Wilkinson on 18 December 2025 which is well after the witness list for the strata company was filed on 26 September 2025. An example of correspondence from CHU to Mr Amaranti is that of 26 September 2025 where Mr Vinay Vasisht an underwriter with CHU clearly stated:67 … We will be unable to proceed with renewal terms if this condition [balcony to be compliant] is not met. 177 Second, it was not necessary for the strata company to call Mr Booth to confirm the correctness of Mr Viska's report, as asserted by Mr and Mrs Wilkinson. This is because Mr Booth, who inspected the property on 13 April 2021 (some four years before Mr Viska), clearly states in his conclusions that the original construction of the building allowed for adequate fire separation and that sliding doors placed immediately behind the balustrade are vertically separated by 600 mm of masonry, 67 Exhibit 2 at page 215. -- 50 of 61 -- [2026] WASAT 94 Page 51 which is less than the Building Code (NCC) requirements at any time in the life of this building. 178 Finally, it was not necessary to call a representative of CHU to confirm CHU's position regarding insurance because Exhibits 2 and 3 (comprised of 985 pages) provide certificates of insurance and all communications between the insurance broker, BMS, and insurer, CHU for the period 1 July 2024 to 11 December 2025 for the strata complex. The documents from BMS and CHU were summoned by Mr and Mrs Wilkinson. For example, the email dated 26 November 2025 from Ms Charlotte Smylie, Underwriter with CHU addressed to Mr Amaranti and copy to Ms Schaefer clearly states the insurance renewal conditions as follows:68 Renewal Conditions: 1. The insured are to ensure that all remaining balconies for lots 32, 46, 72 & 9 are to be rectified prior to the next renewal on 30/06/2026. If there are any delays, the insured are to advise CHU of the delay and the reasons behind it. 2. The insured are to provide CHU with evidence of rectifications for Unit 13 [Lot 9] in the way of invoices/documentation prior to the next renewal of 30/06/2026. Without the above information provided to our office by renewal, this may impact our consideration for the continuance of cover. 179 Bearing in mind my earlier findings that there is no evidence before the Tribunal that the strata company authorised Lot 9's balcony alteration or that the City of Perth issued a building licence for Lot 9's balcony alteration, as the strata company has no power, duty or function under the ST Act, in particular under s 91, s 94, s 100(1) and s 100(2), to undertake work on Lot 9 to make it compliant with the NCC, nor to pay for that work as the balcony alteration was made to Lot 9 (and not the common property), I accept the strata company's position that it is not liable to undertake the work or to pay for the work. 180 Further, as noted earlier, Mr Amaranti's email of 25 November 2025 states that the council (strata company) agreed to pay to get the work done for Lot 9's balcony alteration if CHU confirmed that it would renew the insurance. That statement is inconsistent with Mr and Mrs Wilkinson's assertion that council's representation to CHU 68 Exhibit 2 at pages 335 to 336. -- 51 of 61 -- [2026] WASAT 94 Page 52 contained no condition concerning reimbursement. I therefore reject Mr and Mrs Wilkinson's assertion as incorrect and self-serving. 181 Finally, Mr Wilkinson stated in his witness statement that the City of Perth refused applications (see above at [169]). He did not state that the City of Perth refused both applications because the owners had not submitted a development application. I therefore find Mr Wilkinson's account is incomplete and self-serving. 182 For all of the reasons given, I find that Mr and Mrs Wilkinson, and the previous owners of Lot 9, have benefitted from the use of the balcony alteration. I reject Mr and Mrs Wilkinson's contention that the strata company should bear the cost of making Lot 9's balcony compliant with the NCC. Conclusion - compliance issues 183 For all forgoing reasons, I find that no building licence or authority from the strata company exists for Lot 9's balcony alteration. I further find that Mr and Mrs Wilkinson, as the owners of Lot 9, must make the balcony compliant with the NCC at their own cost. 184 Finally, I turn to consider whether it is reasonable in all the circumstances of this case to exercise the Tribunal's powers to make declaration and orders to resolve the scheme dispute or proceeding. Exercise of statutory discretion What are the considerations in exercising the Tribunal's discretion to make declarations and orders? 185 The power of the Tribunal to make orders to resolve a scheme dispute or proceeding under s 200(1) of the ST Act is a statutory discretionary power. Similarly, the power of the Tribunal to make a declaration under s 199(3) of the ST Act is a statutory discretionary power. 186 The Tribunal may make a declaration concerning a matter instead of an order or in addition to any order the Tribunal makes in the proceeding (s 199(1) of the ST Act). 187 Recently, in Hoddinott and Zar [2026] WASAT 25 at [147] to [152] the following was stated about exercising the Tribunal statutory discretionary power (footnotes omitted): -- 52 of 61 -- [2026] WASAT 94 Page 53 147 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 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 of Australia [1997] HCA 27; (1997) 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[.] -- 53 of 61 -- [2026] WASAT 94 Page 54 151 In exercising the Tribunal's discretionary statutory powers to make an order under s 200(2) of the ST Act, the Tribunal must ultimately take all considerations in the case into account. This may include the following considerations (not an exhaustive list): (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. 152 Similarly, in exercising the Tribunal's discretionary statutory powers to make a declaration under s 199(3) of the ST Act, the Tribunal must ultimately take all considerations in the case into account. This may include the following considerations (not an exhaustive list): (a) whether the proceeding involves the determination of a real question that is not abstract or hypothetical; (b) whether the declaration will produce some real and foreseeable consequences for the parties; (c) whether the declaration will have any utility; (d) whether the proceeding involves a matter of public interest; and (e) whether the circumstances call for the marking of the Tribunal's disapproval of contravening conduct. 188 I adopt and have applied the above considerations in deciding whether or not to exercise the Tribunal's discretionary powers to make declarations and/or orders to resolve the scheme dispute or proceeding. Consideration of whether to exercise discretion 189 In Hopkins and Clayton [2007] WASAT 255, it was held that the management of the strata company is best left to the strata company and -- 54 of 61 -- [2026] WASAT 94 Page 55 that the Tribunal should not too readily impose its own views. However, where there is a deadlock between the strata company and a member of the strata company (a lot owner), the ST Act intends that there be a practicable means to break the deadlock: The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1. 190 A lot owner to not required to assist the strata company. Further, lot owners are not required to act altruistically or sympathetically at the expense of their own interests.69 191 One way to resolve a deadlock between parties under the ST Act is provided for in s 200(1) of the ST Act which empowers the Tribunal, without limitation, to make orders to resolve or settle a dispute or proceeding. The types of orders that the Tribunal may make are set out in s 200(2) of the ST Act. 192 Section 200(1) of the ST Act is a general power that authorises the Tribunal to make an order to resolve a scheme dispute or proceeding including with respect to taking specific action or to refrain from taking specified action in the performance or exercise of its functions. The precondition which enlivens the discretion conferred on the Tribunal to make an order under s 200(1) of the ST Act is that the Tribunal must be satisfied there is a scheme dispute. Earlier, I concluded there is a scheme dispute between the strata company and Mr and Mrs Wilkinson (see above at [67] to [85]). 193 The discretion conferred by s 200(1) of the ST Act to make an order is not limited by any mandatory considerations. However, that is not to say that the statutory power is not without limitation. 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 to resolve a scheme dispute or proceeding. 194 The scope and purpose of the ST Act provide 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'. 195 In my view, the Tribunal's statutory task, as revealed by a consideration of the ST Act as a whole and, in particular, s 200(1) of the 69 Ainsworth v Albrecht [2016] HCA 40; (2016) 261 CLR 167. -- 55 of 61 -- [2026] WASAT 94 Page 56 ST Act is that if the Tribunal finds that there is a scheme dispute then the Tribunal may make an order on the application, in this case by the strata company, to resolve the scheme dispute or proceeding. Importantly, the Tribunal's statutory discretionary power is subject to the presumption of law that the legislature intends the power to be exercised reasonably. Section 200(1) of the ST Act is to be construed accordingly. 196 In the following paragraphs I set out my consideration of whether it is appropriate and reasonable in all of the circumstances of this case to exercise the Tribunal's discretion to make orders under of the ST Act to resolve the scheme dispute or proceeding between the strata company and Mr and Mrs Wilkinson in respect of Lot 9's balcony alteration. In doing so, I will consider the interests of both the strata company and Mr and Mrs Wilkinson. 197 The amended orders sought by the strata company are firstly, orders under s 197(4) of the ST Act requiring Mr and Mrs Wilkinson to give an irrevocable undertaking that Lot 9's balcony will be rendered compliant with the NCC and that within 90 days of giving that undertaking, Mr and Mrs Wilkinson will complete the necessary work to ensure Lot 9's balcony is compliant. In the alternative, the strata company seeks an order under s 200(2)(m) of the ST Act requiring Mr and Mrs Wilkinson to reinstate Lot 9's balcony to its original condition within 90 days. Finally, the strata company seeks an order under s 200(1), s 200(1)(i) or s 200(2)(m) of the ST Act if Mr and Mrs Wilkinson fail comply with either of the orders. 198 I start by noting that s 197(4) of the ST Act provides that a party to the dispute may make an application to the Tribunal for the resolution of a scheme dispute. It would not be open for the Tribunal to make an order under s 197(4) of the ST Act. Rather, apart from s 47(5) of the ST Act which sets out orders the Tribunal may make when dealing with a contravention of a scheme by-law, s 200 to s 210 of the ST Act deals with orders of the Tribunal. The main provision is s 200 which provides that the Tribunal may make any order it considers appropriate to resolve the dispute or proceeding. Other provisions, for example, s 207 of the ST Act deals with enforcement of an order of the Tribunal made requiring a party to act. I will return to s 207 of the ST Act later in these reasons (see below at [205] to [208]). It may be that the strata company intended to refer to s 200(1) rather than s 197(4) in the amended orders sought. It is not necessary to consider this further because, in my view, it would not be appropriate for the Tribunal to order a party to give an irrevocable undertaking in this case. In my view, considering all of the -- 56 of 61 -- [2026] WASAT 94 Page 57 circumstances in this case, an order to act to restore Lot 9's balcony to its original condition is required for the reasons which follow. 199 First, there is a real issue concerning Lot 9's balcony resulting from the balcony alteration. The issue is a live issue, and has been an issue of discussion by the council since about 2021 as reflected in the minutes of meeting held by the council on 7 March 2025. The issue is also a live issue between the strata company and its insurer, CHU, who in correspondence including that of 26 November 2025 requires the strata company to provide evidence of the rectification of Lot 9's balcony by way of invoices/documentation prior to the next renewal due on 30 June 2026 and that failure to do so may impact on CHU's consideration of continuing insurance cover. There is also a real issue concerning Lot 9's balcony and the balcony alteration from Mr and Mrs Wilkinson's point of view as they deny that they are responsible for the balcony alteration or the cost of any works that may be required. These issues are not a hypothetical or theoretical issues. 200 Second, the strata company who seeks the orders has a real interest in this matter. The strata company must have in place the required insurance as that term is defined in s 97 of the ST Act. Correspondence from CHU to BMS and the strata manager over the years, for example the email of 13 October 2023,70 where Ms Mina Vaghjiani, Underwriting Services Manager for CHU stated 'CHU will now require confirmation that all the balconies are complaint to the building code requirements prior to issuing any further renewal' and the email of 4 November 2024,71 where concerns were raised that CHU may not renew the insurance policy where there are non-compliant balconies and no action in place to have those balconies remedied. 201 The strata company had a real interest to make sure all balconies in the strata building are compliant to avoid CHU cancelling or not renewing the insurance policy which would cause the strata company to be in contravention of s 97 of the ST Act. Further, the strata company incurred cost for firstly, a registered builder in April 2021 to investigate and report on whether the change to balconies where the sliding door between the balcony and the lot's interior was moved to a location close to the balustrade of the balcony and then secondly, for a building surveyor and building certification manager in September 2025 to report on whether the balcony alteration of Lot 9 complies with applicable building standards and in particular whether the balcony alteration 70 Exhibit 2 at pages 222 to 223. 71 Exhibit 3 at page 303. -- 57 of 61 -- [2026] WASAT 94 Page 58 complies with vertical fire separation requirements. Mr and Mrs Wilkinson also have a real interest in that they deny they are responsible for the cost of any works that may be required. While Mr and Mrs Wilkinson say that the council agreed to pay the cost of the works, the email of 25 November 2025,72 clearly states that the council have agreed to pay for the works if CHU confirm they will cover renewal of the insurance. There is no correspondence from CHU that they agreed to this. 202 Third, there is utility or benefit in making an order as some real consequences must flow for the parties. There is disharmony between the strata company and Mr and Mrs Wilkinson which has been ongoing since 2021 and that disharmony continues with the consequence, they are still unable to agree a way forward in regards to Lot 9's balcony alteration. 203 Taking into account all of the considerations in this case, in my view, it is reasonable and appropriate to intervene to break the deadlock between the strata company and Mr and Mrs Wilkinson in order to create certainty for the parties and thereby reduce further litigation and dispute concerning Lot 9's balcony alteration. Conclusion - exercise of discretion issue 204 Reflecting back on the orders sought by the strata company, (see above at [36]), in my view, it is reasonable taking into account all considerations to exercise the Tribunal's discretion to make an order under s 200(2)(m) of the ST Act, to require Mr and Mrs Wilkinson withing 90 days of the order, at their cost which includes the obtaining of all relevant approvals (which may include, for example, a development approval and a building permit) to reinstate Lot 9's balcony to its original condition. 205 If Mr and Mrs Wilkinson fail to comply with the orders of the Tribunal, it will be open to the strata company to make an application to the Tribunal under s 207 of the ST Act for the enforcement of an order to act. 206 Under s 207(2) of the ST Act, if the Tribunal is satisfied that Mr and Mrs Wilkinson have failed to comply with the orders of the Tribunal, or have only complied with the orders of the Tribunal in part only, then the Tribunal may: 72 Exhibit 2 at page 145. -- 58 of 61 -- [2026] WASAT 94 Page 59 (a) vary, revoke or substitute the order made; and (b) make an order that the person to whom the order to act was given (in this case, Mr and Mrs Wilkinson) pay to the applicant (in this case, the strata company) a specified amount by way of compensation for the failure to act. 207 The effect of s 207(2) of the ST Act is that if a person is ordered by the Tribunal to do something and they do not comply, then the Tribunal may order that person (in this case, Mr and Mrs Wilkinson) to pay money to the other person (in this case, the strata company) equal to what it would cost to carry out the order to act. 208 Importantly, s 207(2) of the ST Act applies whether or not the person to whom the order to act was given has been convicted of an offence under s 95 of the SAT Act before the revocation of the order. This is provided for in s 207(3) of the ST Act. Conclusion 209 No doubt Mr and Mrs Wilkinson find the strata company unreasonable in circumstances where they purchased Lot 9 with the balcony alteration. 210 Similarly, no doubt the strata company finds Mr and Mrs Wilkinson unreasonable in circumstances where its insurer, CHU, has repeatedly stated that it will be unable to proceed with insurance renewal terms if Lot 9's balcony is not compliant with the NCC with the consequence that the strata company would be in contravention of s 97 of the ST Act without the required insurance. 211 It is unfortunate that the parties were not able to resolve their differences without the intervention of the Tribunal. 212 The Tribunal's objectives requires that it achieve the resolution of matters according to the substantial merits of the case with as little formality and technicality as is practicable (s 9 of the SAT Act). 213 Therefore, reflecting back on the findings that I have made in relation to the issues, in my view, it is appropriate and reasonable in all of the circumstances of this case, to exercise the Tribunal's discretionary powers to make the following order under s 200(2)(m) of the ST Act, for all of the reasons explained earlier in these reasons including to create certainty for the parties and to minimise any further disputes and litigation. In addition, Mr Caine and Ms Carnegie are removed as parties -- 59 of 61 -- [2026] WASAT 94 Page 60 to the proceeding for reasons explained earlier in these reasons. Finally, as the strata company seeks its cost in the proceeding (see above at [37] to [39]), programming orders are made to facilitate that process. Orders 214 For all of the forgoing reasons, I make the following orders. The Tribunal orders: 1. The second applicant is removed as a party to the proceeding. 2. The fifth respondent is removed as a party to the proceeding. 3. Pursuant to s 200(2)(m) of the Strata Titles Act 1985 (WA), the respondents, must within 90 days of these orders and at their cost, which includes obtaining any required approvals from the City of Perth, reinstate Lot 9's balcony to its original condition. 4. A party may apply for their costs of the proceeding by filing with the Tribunal and giving to the other party the following documents within 21 days of these orders: (a) a schedule of the costs claimed in sufficient detail to enable the Tribunal to assess and fix any costs which might be awarded, together with any supporting documents upon which the party wishes to rely. (b) written submissions addressing the basis upon which it is contended that costs should be awarded and the quantum of costs claimed. 5. If a party makes an application for costs, within 21 days of receiving that application, the other party may file with the Tribunal and give to the party making the application for costs, any written submissions opposing the application. 6. Subject to any further order, after the receipt of any written submission opposing an application for costs by a party filed in accordance with order 5 above, the Tribunal will determine the application(s) for costs on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) and will fix the amount of any costs awarded. -- 60 of 61 -- [2026] WASAT 94 Page 61 I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. MS R PETRUCCI, MEMBER 12 AUGUST 2026 -- 61 of 61 --