ZHAO -v- THE OWNERS OF 5 WIMBLEDON STREET BECKENHAM STRATA SCHEME 40695 [2026] WASC 328

[2026] WASC 328 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : ZHAO -v- THE OWNERS OF 5 WIMBLEDON STREET BECKENHAM STRATA SCHEME 40695 [2026] WASC 328 CORAM : BYDDER J HEARD : 20 MARCH 2026 DELIVERED : 17 AUGUST 2026 FILE NO/S : GDA 20 of 2025 BETWEEN : DONG HUA ZHAO First Appellant SHAO JUAN FAN Second Appellant AND THE OWNERS OF 5 WIMBLEDON STREET BECKENHAM STRATA SCHEME 40695 Respondent ON APPEAL FROM: Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL Coram : MS R PETRUCCI, MEMBER File Number : CC 1171 OF 2023 -- 1 of 47 -- [2026] WASC 328 Page 2 Catchwords: Strata title scheme - Appeal against decision of the State Administrative Tribunal - Application for resolution of a scheme dispute under s 197(4) of the Strata Titles Act 1985 (WA) - Whether ordinary resolution at AGM could authorise a strata council member to execute a strata management contract - Whether being 'unfinancial' affects a lot owner's right to serve on a strata council - Whether being 'unfinancial' affects a lot owner's ability to execute contracts - Whether strata company of a two-lot scheme can establish an administrative fund - Whether Tribunal could order that a strata company is authorised to operate an administrative fund Legislation: Interpretation Act 1984 (WA) s 10, s 32 State Administrative Tribunal Act 2004 (WA) s 105 Strata Titles Act 1985 (WA) s 3, s 12, s 13, s 14, s 32, s 34, s 37, s 39, s 44, s 86, s 90, s 99, s 100, s 101, s 102, s 104, s 105, s 118, s 120, s 122, s 123, s 124, s 125, s 127, s 128, s 129, s 130, s 131, s 135, s 139, s 140, s 143, s 197, s 199, s 200, s 210, s 211 Strata Titles (General) Regulations 2019 (WA) r 89 Result: Extension of time in which to appeal granted Leave to appeal granted in part Appeal allowed Matter remitted to State Administrative Tribunal for reconsideration Category: A -- 2 of 47 -- [2026] WASC 328 Page 3 Representation: Counsel: First Appellant : In person Second Appellant : In person Respondent : Mr P Monaco Solicitors: First Appellant : In person Second Appellant : In person Respondent : GV Lawyers Case(s) referred to in decision(s): Andrews and The Owners of Coralie Gardens Strata Plan 44374 [2022] WASAT 2 Godwin v Keet [2026] WASC 105 Medical Board of Australia v GLP [2025] WASCA 87 Rechichi and Johnston [2021] WASAT 79 Redset Nominees Pty Ltd and Owners of Spinnakers Apartments Strata Plan 53824 [2021] WASAT 96 Silkchime Pty Ltd v Valuer-General [2023] WASCA 114 Zhao and Packer [2025] WASAT 88 Zhao and The Owners of 5 Wimbledon Street Beckenham Strata Scheme 40695 [2025] WASAT 87 -- 3 of 47 -- [2026] WASC 328 BYDDER J Page 4 BYDDER J: Introduction 1 The appellants are the registered proprietors of Lot 2 on Strata Plan 40695 in Beckenham (Scheme).1 There is only one other lot on the Scheme, Lot 1. Ms Packer is the registered proprietor of Lot 1. 2 Ms Packer and the appellants have a share in the common property of the Scheme in accordance with their respective unit entitlements.2 Lot 1's unit entitlement is 54 and Lot 2's unit entitlement is 46.3 3 There is a right of carriageway over a portion of the Scheme's common property in favour of a neighbouring strata titles scheme, Strata Plan 40694 (neighbouring strata scheme). The Scheme also has a right of carriageway over a portion of the neighbouring strata scheme's common property. 4 In addition to these rights of carriageway, the City of Gosnells has a right of carriageway and an easement over a portion of the Scheme's common property. The Water Corporation also has a sewerage easement over a portion of the Scheme's common property. 5 The rights of carriageway and easements are depicted on the scheme plan for the Scheme. The management and upkeep of the common property burdened by the rights of carriageway and easements is shared equally between the Scheme and the neighbouring strata scheme.4 6 The Scheme was registered on 7 December 2001.5 7 On registration a strata company was established for the Scheme (Company), comprising the owners for the time being of the lots in the Scheme.6 Each of those owners is a member of the Company.7 8 The Company is the respondent to the appeal to this court. 1 Book of documents filed 21 October 2025 (BD) 4 - 5, 7 - 13. 2 Unit entitlements are significant in three respects. The unit entitlement of a lot determines the interest of the lot owner in the common property in the strata titles scheme, the contributions payable by the owner of a lot in the scheme (subject to the scheme by-laws) and one form of the voting rights that attach to the lot: see the Strata Titles Act 1985 (WA) s 13, s 37, s 100, s 120, s 122 and s 135. 3 BD 8. 4 BD 7. As to the nature of a scheme plan, see the Strata Titles Act 1985 (WA) s 12, s 32, s 34 and pt 5 div 1. 5 BD 7. 6 Strata Titles Act 1985 (WA) s 14(1). 7 Strata Titles Act 1985 (WA) s 14(8). -- 4 of 47 -- [2026] WASC 328 BYDDER J Page 5 The appellants make an application to the Tribunal 9 Part 13 of the Strata Titles Act 1985 (WA) (Act)8 provides for State Administrative Tribunal (Tribunal) proceedings. The first section of pt 13 is s 197, which provides in subsection (4) that '[a]n application for resolution of a scheme dispute can be made to the Tribunal by a party to the dispute'. 10 A dispute is a scheme dispute if it comes within one of the categories of dispute specified by s 197(1). Relevantly, they include:9 (a) a dispute between scheme participants about - (i) the scheme documents, including the validity of scheme by-laws; or (ii) the performance of, or the failure to perform, a function conferred or imposed on a person by this Act or the scheme by-laws; or (iii) an alleged contravention of this Act (other than an offence); or (iv) a resolution or decision of a strata company or the council of a strata company, including its validity; or (v) the appointment or election of a member of the council or an officer of a strata company, including its validity; or (vi) any other matter arising under this Act or the scheme by-laws; 11 As the strata company for the Scheme, the Company is a scheme participant for the purposes of this provision. The appellants and Ms Packer are scheme participants for the same purposes, because they are members of the Company.10 12 On 6 September 2023, the appellants commenced an application in the Tribunal against the respondent and Strata Administration Services 8 References in these reasons to statutory provisions are references to the Act unless otherwise stated. 9 The Act s 197(1)(a). A dispute about an amount owed as a debt is not a scheme dispute (the Act s 197(3)(f)), subject to two exceptions that are irrelevant to this appeal: see the Act s 99(2) and sch 2A cl 53E, which are concerned with certain debts relating to insurance. 10 The Act s 197(2)(a) and (d) respectively. -- 5 of 47 -- [2026] WASC 328 BYDDER J Page 6 Pty Ltd (SAS) under s 197(4). In their application, the appellants sought the following orders:11 1. An external auditor or accountant to conduct a review of the accounts for the past 7 years due to discrepancies in the accounts. This includes but is not limited to: a) Annual meeting records are not true. (1) The differences between the charged fees and real expenditure. (2) Some of the budget is too high. b) Strata Administration Services Pty Ltd ACN 082 419 645 (Strata Manager) is the strata manager for the Strata Company added the ATO/BAS and OH/S fees to increase the management fees that was not agreed to. c) The Strata company bank statement lacks details: (1) For example, money has been taken away from the account however it is not shown exactly what expenditure it was. 2. Strata Plan 40695 is a 2-lot Scheme within the definition of s 3(1) of the Act and thus we request the Tribunal review each resolution made by the Strata Company within the last 7 years as we are of the opinion that certain resolutions by the Strata Company were not in accordance with the Act. 3. We ask the Strata Company and by extension the Strata Manager provide us with all contracts (including insurance contracts) that the Strata Company is a party to. 4. That the Strata Company terminates the contract with the Strata Manager due to negligence and mismanagement on their part. a) During their service from 2001 till 2022, we suffered a great financial loss because of their irresponsible management. b) When they decide to do something, they do not give us any notice or require our consent or signature. c) Constant lack of communication and outright ignoring us in relation to answers to our issues and questions. 11 BD 6. -- 6 of 47 -- [2026] WASC 328 BYDDER J Page 7 5. The Strata Company has filed Magistrate's Court claim against us Case 3847/2023 and we request the matter be moved to the jurisdiction of the Tribunal. 13 At a directions hearing on 29 September 2023, SAS was removed as a party to the proceeding because a strata manager is not a scheme participant.12 The appellants commenced a separate application against SAS under s 198(1) seeking authorisation to apply to the Tribunal to remove SAS as the strata manager. The Tribunal dismissed that application13 and no appeal has been brought by the appellants from the Tribunal's decision in that proceeding. 14 At a directions hearing on 30 April 2024, the Tribunal ordered that:14 The five orders sought in the application are discontinued and the matter is to […] proceed to hearing on the four issues outlined in the applicants' statement of issues, facts and contentions[.] 15 Those four issues, as recorded by the Tribunal in its Reasons, were as follows:15 1. Whether the strata managers for the [Company] - Strata Administration Services Pty Ltd … trading as Strata Administration Services ([s]trata [m]anager) are strata managers within Part 9 of the [Act] and in particular whether a strata management contract is in force between the [Company] and the [s]trata [m]anager. 2. Whether administration levies have been properly levied in accordance with the [Act]. 3. Whether there is an issue with the accounts of the [Company]. 4. Whether the current lawyers of the [Company] have standing to act on behalf of the [Company] and is there a conflict of interest. 16 The Tribunal was satisfied that it had jurisdiction to determine the dispute as defined by those four issues. The Tribunal took this view because each of the appellants and the Company are scheme participants, the scheme dispute within the meaning of s 197(1) 12 Tribunal's reasons for decision in Zhao and The Owners of 5 Wimbledon Street Beckenham Strata Scheme 40695 [2025] WASAT 87 (Reasons) [8]. 13 Zhao and Packer [2025] WASAT 88. Ms Packer was joined as a respondent to that proceeding on 29 November 2024, see [3]. 14 Reasons [3]. 15 Reasons [4]. -- 7 of 47 -- [2026] WASC 328 BYDDER J Page 8 comprised the four issues and the appellants made their application to the Tribunal under s 197(4).16 17 The Tribunal also noted that the proceeding came within its original jurisdiction under s 209. As such, the Tribunal said, its role was not inquisitorial but rather:17 [T]o make a decision on the basis of the evidence presented to it and the usual practice is that the parties have the management of their respective case. Therefore, Mr Zhao and Ms Fan, as the applicants, bear the burden of proving their case, that is, persuading the Tribunal that they are entitled to the relief (orders) they seek, being the civil standard of proof, being on the balance of probabilities. 18 The final hearing was held on 7 and 8 April 2025, at which the Tribunal accepted into evidence a hearing book prepared by the Tribunal on 24 March 2025 and comprising 1,140 pages (as exhibit 1) and an email dated 27 July 2020 from Mr Kiddle of SAS to the appellant Mr Zhao comprising one page (as exhibit 2).18 19 The learned Member also heard oral evidence from the appellants and Mr Kiddle. Each of them confirmed the contents of a witness statement they had made for the Tribunal proceeding.19 The Tribunal's decision 20 Final written submissions were received on 29 May 2025 and the Tribunal handed down its decision on 26 August 2025. 21 After observing that the 'factual framework of the dispute is agreed or is uncontroversial', the Tribunal made findings of fact about the Scheme, the Company, the owners of Lot 1 and Lot 2 and the common property cost sharing agreement.20 I have referred to most of those facts above. 22 The Tribunal considered each of the four issues in turn and decided that the appellants failed on each issue.21 23 The Tribunal then considered the principles applicable to its discretion to make declarations and orders22 and whether to make any 16 Reasons [10]. 17 Reasons [11]. 18 Reasons [13]. 19 Reasons [14]. 20 Reasons [15] - [25]. 21 Reasons [27] - [89]. 22 Reasons [90] - [92]. -- 8 of 47 -- [2026] WASC 328 BYDDER J Page 9 declarations or orders in respect of the four issues.23 The Tribunal concluded:24 [I]t is reasonable in all of the circumstances of this case, to exercise the Tribunal's discretionary powers under s 199 and s 200 of the [Act] to make the following declarations and orders for the reasons explained above and in summary: (a) to formalise arrangements including with respect to the administrative fund; and (b) to create certainty for the parties and to minimise any further disputes and litigation as there is a real and substantial disharmony on the part of Mr Zhao and Ms Fan which has persisted since about July 2020 when they stopped paying contributions (strata levies) to the strata company. Orders The Tribunal orders: 1. Pursuant to s 199(3) of the Strata Titles Act 1985 (WA) the Tribunal declares: (a) the strata manager, Strata Administration Services, was validly appointed under the strata management contract entered into between the respondent and Strata Administration Services in or about 2020 and again in or about 2022; (b) the respondent is authorised to perform the designated function of operating an administration fund pursuant to … s 100(1) and 140(3) of the Strata Titles Act 1985 (WA); and (c) GV Lawyers, was validly appointed under the costs agreement in or about 2023. 2. Pursuant to s 200(2) of the Strata Titles Act 1985 (WA) the Tribunal orders: (a) the strata manager, Strata Administration Services, was validly appointed under the strata management contracts entered into between the respondent and Strata Administration Services firstly in or about 2020, and secondly in or about 2022; 23 Reasons [93] - [103]. 24 Reasons [105]. -- 9 of 47 -- [2026] WASC 328 BYDDER J Page 10 (b) the respondent is authorised to perform the designated function of operating an administration fund pursuant to s 100(1) and s 140(3) of the Strata Titles Act 1985 (WA); and (c) GV Lawyers was validly appointed under the costs agreement in or about 2023. 3. Pursuant to s 200(4) of the Strata Titles Act 1985 (WA) the Tribunal orders: (a) order 2(a) above is to be taken to have come into effect on the date the respondent entered into each of the strata management contracts in or about 2020 and in or about 2022; (b) order 2(b) above is to be taken to have come into effect on the date the respondent created the administration fund; and (c) order 2(c) above is to be taken to have come into effect on the date the respondent entered into the cost agreement in or about 2023. 4. The application is otherwise dismissed. 24 I refer to the Tribunal's reasons in more detail below in the context of the appeal to this court. The appeal to this court 25 By an appeal notice filed on 20 October 2025, the appellants relevantly sought an extension of time in which to appeal and leave to appeal from the Tribunal's decision. Extension of time 26 An application for leave to appeal from the Tribunal's decision must be made within 28 days after the Tribunal's decision, although that time may be extended by the court even if the time limit has passed.25 As I have noted, the Tribunal's decision was made on 26 August 2025 and the appeal notice was filed on 20 October 2025. The application for leave to appeal was therefore made after the time limit had passed. 27 The appellants rely on an affidavit sworn on 15 October 2025 and filed on 20 October 2025 in support of their application for an 25 State Administrative Tribunal Act 2004 (WA) (SAT Act) s 105(5) and s 105(7). -- 10 of 47 -- [2026] WASC 328 BYDDER J Page 11 extension of time. The affidavit deposes, and attaches documents reflecting, that: (a) the appellants sought internal review of the learned Member's decision on 22 September 2025 under the mistaken belief that an internal review was available under s 210; (b) the appellants were informed by the Tribunal on 26 September 2025 that they were not entitled to seek internal review under s 210; (c) they always intended to appeal the orders made by the Tribunal and had done so as quickly as possible. 28 The last day for the appellants to commence their application to this court for leave to appeal within time (or to seek internal review if it was available under s 210) was 23 September 2025. They took the mistaken step of seeking internal review on 22 September 2025. 29 The appellants' notice of appeal was filed on 20 October 2025, 24 days after the Tribunal informed the appellants that they were not entitled to seek internal review under s 210. 30 The evidence is consistent with the appellants acting with reasonable speed, albeit at first mistakenly. The respondent neither contends nor has sought to lead evidence to the effect that the respondent is materially prejudiced by the appellants' delay in commencing their application to this court for leave to appeal. In all the circumstances and assuming that the appellants should be granted leave to appeal on at least one of the questions on which they seek to rely, it would be appropriate to grant the appellants an extension of time in which to apply for leave to appeal. 31 If leave to appeal should not be granted on any of the questions on which the appellants seek to rely, then the application for an extension of time should be refused because an extension of time would be futile. Leave to appeal 32 The appellants may appeal from the Tribunal's decision to this court, but only if leave to appeal is granted.26 The appeal can only be brought on a question of law.27 26 SAT Act s 105(1) and s 105(3)(b). 27 SAT Act s 105(2). -- 11 of 47 -- [2026] WASC 328 BYDDER J Page 12 33 The principles applicable to the grant of leave to appeal were recently recalled by the Court of Appeal in Medical Board of Australia v GLP:28 As this Court recognised in Paridis v Settlement Agents Supervisory Board, the power to grant leave is conferred in general terms and leave should be granted if, in all of the circumstances, it is in the interests of justice that there should be a grant of leave. While the ultimate issue is whether the grant of leave is in the interests of justice, Buss JA in Paridis stated that, in considering whether to grant leave, regard should be had to the guidelines articulated by the court in Secretary to the Department of Premier and Cabinet v Hulls. In Hulls, Phillips JA said: When leave is sought to appeal … it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible. These guidelines are relevant. They are not, as Buss JA emphasised in Paridis, determinative. Whether leave is granted must depend upon the circumstances of each particular case. In this regard, the grant of leave should not be regarded as a perfunctory exercise. The legislative purpose in requiring the grant of leave is to reduce unnecessary appeals from decisions of the Tribunal. 34 On 24 November 2025, Quinlan CJ ordered that the appellants' application for leave to appeal be heard together with the appeal. Appeal on a question of law 35 In Silkchime Pty Ltd v Valuer-General,29 the Court of Appeal explained the nature of an appeal from the Tribunal and referred to an oft-adopted summary of principles which assist in identifying questions of law: 28 Medical Board of Australia v GLP [2025] WASCA 87 [39] - [41] (Quinlan CJ, Vaughan & Archer JJA) (footnotes omitted). 29 Silkchime Pty Ltd v Valuer-General [2023] WASCA 114 [71] - [72] (Buss P, Beech JA & Morrison AJA) (footnotes omitted). -- 12 of 47 -- [2026] WASC 328 BYDDER J Page 13 As has been explained in many cases, while termed an appeal, the 'appeal' is in the nature of judicial review. The function of the court is, and is only, to examine what the Tribunal has done for legal error. Where, as here, an appeal lies 'on a question of law', the question (or questions) of law is the entirety of the subject matter of the appeal. If, on proper analysis, the question raised by a litigant is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law. In a summary of principles adopted by this court on numerous occasions since, in Paridis v Settlement Agents Supervisory Board, Buss JA, as his Honour then was, stated the following further propositions (Wheeler and Pullin JJA agreeing): (1) A question of mixed fact and law is not a question of law within s 105(2). (2) A ground of appeal which asserts the decision is against the evidence and the weight of the evidence does not raise a question of law. (3) A tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis. (4) A ground of appeal that a tribunal has made a finding which is manifestly unreasonable, in the sense that no reasonable tribunal could have made that finding, alleges an error of law. (5) A ground of appeal that a tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account alleges an error of law. The questions on which the appellants seek to rely 36 The appellants seek to rely on what they contend are ten questions of law, distributed across five issues.30 They have formulated the issues and questions as follows: [Issue 1] Whether the [Tribunal] erred in finding that SAS was validly appointed under either or both of the 2020 Contract or the 2027 Contract.31 In particular whether the [Tribunal] erred in: (a) the application of s 118 of the [Act] that a contract is valid even if it is signed only by one of the owners of a two-lot title. 30 Notice of appellants' grounds to appeal decision filed 20 October 2025 [2(d)]; appellants' outline of submissions filed 20 February 2026 [11] - [15]. Issues 3, 4 and 5 are three of the questions of law on which the appellants rely. 31 These are references to strata management contracts. The Tribunal's reasons only refer to strata management contracts dating from 2020 and 2022. These reasons also refer only to strata management contracts dating from those years. -- 13 of 47 -- [2026] WASC 328 BYDDER J Page 14 (b) finding that the Appellants were 'unfinancial'. (c) that even if the Appellants were unfinancial whether it precludes them from their rights as members of the strata council or their rights to execute contracts; and (d) whether SAS had a right to vote in respect of a proxy under [s] 124 of the [Act]. [Issue 2] Whether the [Tribunal] erred in finding that the Respondent is authorised to perform the designated function of operating an administration fund pursuant to … s 100(1) and [s] 140(3) of the [Act]. In particular whether: (a) the [Tribunal] had any power to make any orders when no s 140(3) application was made by any member of [the Scheme]. (b) the [Tribunal] considered all factors relevant to the exercise of discretion to determine whether a two-lot strata scheme should have an administrative fund; and (c) the [Tribunal] failed to provide procedural fairness to all the owners an opportunity to respond to a decision to impose an administrative fund. [Issue 3] Whether the [Tribunal] erred in finding that [the appellants] are liable to pay for strata manager fees, electricity, insurance brokerage, stamp duty and GST. In particular whether [the Tribunal] failed to give proper consideration to the Appellants in respect of the claims provided in the Accounts Discrepancies [that is, 'Discrepancies due to Bank Account - Book of Documents Page 550-553']. [Issue 4] Whether the [Tribunal] erred in finding that GV [Lawyers] was [validly] appointed especially considering the absence of any resolution or participation by both lot owners. [Issue 5] Whether the [Tribunal] failed to properly exercise its discretion in relation to the making of the Orders. In particular whether the [Tribunal] erred in law in its construction and application of ss 199(3) and 200(1) - (4) of [the Act] in exercising its discretion to make and backdate declarations and orders. 37 As the question (or questions) of law is the entirety of the subject matter of the appeal, it is necessary that I consider each proposed question and determine whether leave to appeal should be granted on that question. 38 The appellants are unrepresented. In considering the issues identified by the appellants and the questions which they contend are -- 14 of 47 -- [2026] WASC 328 BYDDER J Page 15 questions of law in respect of each issue, I recognise that I must 'take care so as not to unfairly misinterpret the grounds based on a purely legalistic reading of them, and due allowance should be given in this regard'.32 Issue 1 - s 118 of the Act 39 This raises a question of law within the meaning of s 105(2) of the SAT Act. 40 Making due allowance for the appellants being unrepresented, the question of law is whether Ms Packer was authorised under s 118 to execute strata management contracts between the Company and SAS from 2020, based on facts which are not in dispute.33 I address those facts in considering this question. 41 I would grant leave to appeal on this question. Issue 1 - 'unfinancial' 42 Whether the appellants were 'unfinancial' at any relevant time - that is, relevantly, whether they owed strata levies to the Company34 - will only be a question of law within the meaning of s 105(2) of the SAT Act to the extent that it is concerned with the entitlement to cast the vote held by Lot 2 on ordinary resolutions, based on facts which are not in dispute. I address those facts in considering this question. 43 Making due allowance for the appellants being unrepresented, the question of law is whether there was an outstanding amount recoverable under the Act owed to the Company by the appellants as owners of Lot 2, such that they could not cast the vote attached to Lot 2 on an ordinary resolution. 44 I would grant leave to appeal on this question. 32 See Godwin v Keet [2026] WASC 105 [56] (Lundberg J). Counsel for the Company submitted at the hearing of this appeal that the appellants 'have legal representation, but they're not here. Everything that the appellants have done in the Magistrates Court and in the tribunal and now here has been underwritten by a legal trained person': ts 20. On that basis, counsel did not agree that I should take the approach I have outlined here. However, there was no evidence before me to support counsel's submission. 33 I note for completeness that no reliance was placed by the Tribunal or either party on s 139 of the Act, which deals with contract formalities. It would not be appropriate for me to do more than note s 139, given the lack of reliance on the provision by the Tribunal or any party at any stage of these proceedings. Further, assessing whether reliance can be placed on s 139 to uphold the validity of any of the strata management contracts may require not only submissions but evidence. It is not an assessment that can be made in this appeal. 34 See Reasons [44] - [56]. -- 15 of 47 -- [2026] WASC 328 BYDDER J Page 16 Issue 1 - the effect of being 'unfinancial' 45 This raises a question of law within the meaning of s 105(2) of the SAT Act. 46 Making due allowance for the appellants being unrepresented, the question of law is whether being 'unfinancial' materially affected the appellants' rights as a council member (noting only one of the appellants can be a council member) or in relation to the execution of strata management contracts. 47 I would grant leave to appeal on this question. Issue 1 - whether SAS had a right to vote as a proxy 48 The appellants contend that SAS could not vote as a proxy for Ms Packer on a resolution in relation to the Company making, varying or extending a strata management contract with SAS. The appellants submit that SAS could not do so because of s 125(2) and the lack of compliance with s 125(3) and s 125(4). 49 This argument was never raised before the Tribunal.35 The Tribunal cannot have erred by failing to address an argument that was never made to the Tribunal. 50 Further, this proposed question involves two questions of fact: first, whether notice had been given of a proposed resolution to appoint SAS as strata manager in the manner required by s 125(3)(a) and s 125(4); and second, whether the instrument by which Ms Packer appointed SAS as her proxy expressly authorised SAS to vote on the resolution and specified whether SAS was to vote for or against the resolution, as required by s 125(3)(b). 51 Once those two questions are answered, a question of law may arise in respect of the legal consequences of the facts as found. As such, this question is a question of fact or of mixed fact and law. It is not a question of law within the meaning of s 105(2) of the SAT Act. 35 At the hearing, the appellant Mr Zhao could not remember whether the argument had been raised before the Tribunal. The appellant Ms Fan did not make any submission on whether the argument had been raised before the Tribunal. Counsel for the Company submitted that it did not emerge in the Tribunal proceedings and noted that there was no reference to s 125 of the Act in the Reasons: ts 46 - 47, 61. On my review of the appellants' statement of issues, facts and contentions before the Tribunal (BD 345 - 351) and on searching for '125' and 'conflict' in the Book of Documents (which includes the transcript of the various appearances before the Tribunal, including the final hearing, at BD 1024 - 1140), there appears to be no reference to s 125 of the Act or to any argument made before the Tribunal that SAS could not vote as a proxy for Ms Packer. -- 16 of 47 -- [2026] WASC 328 BYDDER J Page 17 52 I would refuse leave to appeal on this question. Issue 2 - was the Company authorised to operate an administrative fund? 53 Whether the Company was authorised to operate an administrative fund in light of s 100(1) and s 140(3) is a question of law within the meaning of the SAT Act s 105(2). The facts relevant to this question are not in dispute. 54 However, the Tribunal accepted that under s 140(1)(b), the Company cannot establish an administrative fund unless required to do so by the Scheme's by-laws because the Scheme has only two lots. The Tribunal also accepted that those by-laws did not require the Company to establish an administrative fund. So much was conceded by the Company before the Tribunal.36 55 The Tribunal was correct. The Act imposes a range of functions on a strata company.37 However, s 140 provides special rules for a 2-lot scheme,38 such as the Scheme, which affect those functions. 56 The strata company for a 2-lot scheme may, but is not required to, perform a designated function.39 Further, the strata company cannot establish an administrative fund unless required to do so by the strata scheme's by-laws.40 As the Scheme's by-laws did not so require, the Company could not establish an administrative fund. 57 It follows that this proposed question does not involve a question of law which when answered may identify any error on the Tribunal's part. For that reason, I would refuse leave to appeal on this question. Issue 2 - whether the Tribunal was empowered to make orders 1(b), 2(b) and 3(b) 58 Whether the Tribunal was empowered to make orders 1(b), 2(b) and 3(b), (which are reproduced above at [23]) raises a question of law within the meaning of s 105(2) of the SAT Act. 36 Reasons [64]. 37 See especially the Act pt 8 div 1. 38 That is, a strata titles scheme in which there are two lots: the Act s 3(1) (definition of '2, 3, 4 or 5-lot scheme'). 39 That is, a function conferred on a strata company by s 100(1)(a) (administrative fund), s 101 (accounting records and statement of account), s 104(1)(b) (minutes of meetings), s 104(3)(a) (letterbox) or s 105(1) (roll to be kept by strata company), or a function prescribed by regulation to be a designated function: the Act s 140(1)(a) and s 140(4). 40 The Act s 140(1)(b). As the strata scheme does not provide specifically for its by-laws, they are taken to be the by-laws set out in the Act sch 1 and sch 2: the Act s 39. -- 17 of 47 -- [2026] WASC 328 BYDDER J Page 18 59 Making due allowance for the appellants being unrepresented, the question of law is whether the Tribunal in resolving a scheme dispute under pt 13 could make orders authorising the Company to establish an administrative fund without an application having been made under s 140(3). 60 I would grant leave to appeal on this question. Issue 2 - whether the Tribunal considered all relevant factors 61 Whether the Tribunal considered all factors relevant to determining whether the Scheme should have an administrative fund does not give rise to any question of law within the meaning of the SAT Act s 105(2). 62 In any event, as will appear from my reasons it will be necessary for this matter to be returned to the Tribunal for reconsideration. In those circumstances, it is unnecessary to consider this question. 63 I would refuse leave to appeal on this question. Issue 2 - procedural fairness 64 This question raises a procedural fairness issue in respect of the Tribunal making orders 1(b), 2(b) and 3(b) to authorise an administrative fund. 65 As I have said, it will be necessary for this matter to be returned to the Tribunal for reconsideration. In those circumstances, it is unnecessary to consider this question. 66 I would refuse leave to appeal on this question. Issue 3 - whether the Tribunal failed to give proper consideration in respect of account discrepancies 67 This question is not a question of law within the meaning of s 105(2) of the SAT Act, as the appellants accepted.41 68 I would refuse leave to appeal on this question. Issue 4 - whether GV Lawyers were validly appointed 69 This raises a question of law within the meaning of s 105(2) of the SAT Act. 41 ts 50. -- 18 of 47 -- [2026] WASC 328 BYDDER J Page 19 70 Making due allowance for the appellants being unrepresented, the question of law is whether Ms Packer was authorised under s 118 to enter into a cost agreement between the Company and GV Lawyers, based on facts which are not in dispute. I address those facts in considering this question. 71 I would grant leave to appeal on this question. Issue 5 - whether the Tribunal erred in law in its construction and application of s 199(3) and s 200(1) - (4) 72 As developed in the appellants' written submissions,42 this proposed question is solely concerned with the Tribunal's orders authorising an administrative fund with retroactive effect and does not raise any question of how s 199(3) or s 200 are to be construed. 73 The appellants do not suggest that decisions to which the Tribunal referred43 as summarising the principles and factors to consider in determining whether or not to exercise the Tribunal's powers to make declarations under s 199 or orders under s 200 are incorrect. Instead, the appellants contend that the Tribunal failed to properly exercise its discretion in respect of those powers. 74 As I have said, it will be necessary for this matter to be returned to the Tribunal for reconsideration. In those circumstances, it is unnecessary to consider this question. 75 I would refuse leave to appeal on this question. The questions of law in this appeal 76 In light of the above, there are five questions of law which fall for consideration in this appeal. It is convenient to consider those questions in the following order. 1. Was Ms Packer authorised under s 118 to execute strata management contracts between the Company and SAS from 2020? 2. Was Ms Packer authorised under s 118 to enter into a cost agreement between the Company and GV Lawyers? 42 AS [71] - [86]. The appellants did not materially add to their submissions on this question in oral argument. 43 Reasons [91] - [92]. -- 19 of 47 -- [2026] WASC 328 BYDDER J Page 20 3. If the appellants were 'unfinancial', did that materially affect their rights as a council member or in relation to the execution of strata management contracts? 4. Was there an outstanding amount recoverable under the Act owed to the Company by the appellants as owners of Lot 2, such that they could not cast the vote attached to Lot 2 on an ordinary resolution? 5. Could the Tribunal in resolving a scheme dispute under pt 13 make orders authorising the Company to establish an administrative fund without an application having been made under s 140(3)? Question 1: was Ms Packer authorised under s 118 to execute strata management contracts between the Company and SAS from 2020? The Tribunal's reasons 77 It was not in dispute before the Tribunal that only Ms Packer (as the owner of Lot 1) signed the strata management contracts with SAS which were required under the Act from 2020 if SAS was to be authorised to perform functions as a strata manager.44 The Tribunal held that those contracts (signed in 202045 (2020 Contract) and 202246 (2022 Contract)) were effective for essentially the following reasons. 78 A strata company may, subject to the Act, authorise a strata manager to perform specified 'scheme functions', such as controlling and managing the common property for the benefit of all owners.47 79 The functions of a strata company are to be performed by its council, subject to the Act and to any restriction imposed or direction given by ordinary resolution of the strata company. In the case of the Scheme, both the owner of Lot 1 and the owners of Lot 2 are members of the Company's council (Council).48 At Council meetings, all matters must be determined by a simple majority vote.49 44 Reasons [27(a)], [28]. 45 Reasons [54]. 46 Reasons [56]. 47 Reasons [36]. 48 Reasons [36] - [37]. 49 Reasons [41]. -- 20 of 47 -- [2026] WASC 328 BYDDER J Page 21 80 For a two-lot scheme such as the Scheme, a quorum is constituted at a general meeting of the strata company if there are present persons entitled to cast a vote attached to each of the lots.50 81 The owner of each lot in a strata titles scheme is entitled to one vote on a proposed resolution of the strata company. Where a lot has more than one owner, the co-owners may only cast one vote through a single proxy (who may be one of the co-owners).51 82 Resolutions passed at a general meeting of a council may be ordinary resolutions unless the Act otherwise requires. For an ordinary resolution, votes must be counted by the number cast unless a person entitled to cast a vote demands that they be counted by the number of unit entitlements of the lots for which votes are cast. If such a demand is made, the votes are counted by unit entitlement.52 83 With certain irrelevant exceptions, a lot owner is not entitled to cast a vote on an ordinary resolution if the owner has an outstanding amount such as strata levies owed to the strata company. In such a case, the lot owner is usually referred to as 'unfinancial' and is not entitled to vote. Further, resolutions can only be proposed by an owner who is entitled to vote on the resolution.53 84 As a resolution to appoint a strata manager is an ordinary resolution of a strata company, a lot owner is ineligible to cast a vote on that resolution while 'unfinancial'.54 At least since 2021, the appellants have been unfinancial as the appellants accept that they have not paid any strata levies to the Company since about July 2020 (assuming that they are required to pay those levies).55 85 The appellants were financial and therefore entitled to vote on ordinary resolutions on 24 June 2020 (when the 2020 annual general meeting (AGM) of the Company was held).56 At the 2020 AGM, the following resolution (2020 Resolution) was passed by two votes to zero:57 50 Reasons [42]. 51 Reasons [38]. 52 Reasons [39] - [40], [43]. 53 Reasons [44] - [46]. 54 Reasons [47]. 55 Reasons [47] - [50]. 56 Reasons [52]. 57 BD 635; Reasons [48]. -- 21 of 47 -- [2026] WASC 328 BYDDER J Page 22 6.4 Execution of Documents - Motion under Notice That the Strata Council is authorised to enter and execute contracts, agreements, undertakings or other legally binding arrangements from time to time, which are necessary to achieve the Strata Company's General Duty. 86 The 2020 Contract was not an agenda item for the 2020 AGM. Such contracts are not discussed at the AGM unless an owner specifically requests a discussion and no such request was made for the 2020 AGM.58 87 On 27 July 2020, when the appellants were still financial, Mr Kiddle of SAS wrote to the appellants by email asking them to sign the 2020 Contract. The appellants did not sign the 2020 Contract but Ms Packer as the owner of Lot 1 did.59 88 While there are no minutes of a Council meeting, the circumstances were that the appellants had been given the opportunity to sign the 2020 Contract and had not done so, there had been a strata manager in place, Ms Packer supported the strata manager continuing and the Act now required that a contract be in place. In those circumstances, it was appropriate and it can be inferred that after the appellants refused to sign the contract a vote by the number of unit entitlements was undertaken. As Ms Packer (as the owner of Lot 1) had more than 50% of the sum of the unit entitlements, she signed the contract and thereby satisfied the requirements of s 123(7)(b)(ii).60 89 A similar resolution to the 2020 Resolution was passed at the 2021 AGM, the 2022 AGM and the 2023 AGM. The appellants did not attend the 2021 AGM or the 2022 AGM, but they did attend the 2023 AGM.61 90 When the 2022 Contract was being considered, the appellants were 'unfinancial' and ineligible to cast a vote on an ordinary resolution. Ms Packer as the owner of Lot 1 was the only owner eligible to vote and it was unnecessary to cast a vote because Ms Packer, as the sole owner entitled to vote, signed the 2022 Contract. It is unnecessary to consider whether a vote by the number of unit entitlements was undertaken, but it is clear that Ms Packer has more than 50% of the sum 58 Reasons [53]. 59 Reasons [52], [54]. 60 Reasons [54]. 61 Reasons [50] - [51]. -- 22 of 47 -- [2026] WASC 328 BYDDER J Page 23 of the unit entitlements and therefore meets the requirements of s 123(7)(b)(ii).62 The appellants' submissions 91 The appellants relevantly submit that: (a) a member of a strata scheme's right to vote on ordinary resolutions at a meeting is completely separate from the member's rights to sign documents or rights as a member of the Council; (b) the 2020 Resolution authorised the Council to enter into contracts but did not require the Council to do so and instead merely complied with the requirements for the execution of documents under s 118(2); (c) there was never any meeting of the Council nor was there any delegation by the Company or the Council to Ms Packer to sign any contracts (including the 2020 Contract); (d) the requirements for voting on ordinary resolutions are different from the execution requirements under the Act and there was no vote in respect of the 2020 Contract as it was not presented during the 2020 AGM; (e) the appellants chose not to sign the 2020 Contract and were under no obligation to sign it and because they did not sign it, the 2020 Contract is not in force; (f) to the extent that the appellants were unfinancial, that only precluded them having a vote in respect of an ordinary resolution and did not otherwise affect their rights, including in relation to the execution of contracts and otherwise voting at meetings of the Council as contemplated by sch 1 cl 8; and (g) whether an ordinary resolution is passed by unit entitlements or the number of votes cast (and the appellants dispute that any vote was taken at all on any strata management contract), that has no bearing on whether or not a contract is signed. 62 Reasons [56]. -- 23 of 47 -- [2026] WASC 328 BYDDER J Page 24 The Company's submissions 92 The Company relevantly submits that: (a) the Tribunal's reasons are correct; (b) the 2020 Resolution authorised the Council to enter into and execute contracts that were necessary; (c) the 2020 Contract became necessary given the requirements of s 144, the history of the Company engaging SAS and the owners, including the appellants, using the services of SAS as strata manager; (d) Ms Packer had capacity to sign the 2020 Contract on behalf of the Company in accordance with the Resolution and because Ms Packer as the owner of Lot 1 had more unit entitlements than the appellants as the owners of Lot 2; (e) a similar resolution to the 2020 Resolution was passed at the 2021 AGM, the 2022 AGM and the 2023 AGM and since 2020 strata management contracts have been signed by Ms Packer but not the appellants; (f) each of the strata management contracts since 2020 have been validly entered into in light of the above; (g) it was necessary for the Company to proceed as it did given the practicalities of governing a very small strata scheme such as the Scheme and the long history of SAS being the Scheme's strata manager, which the strata management contracts sought to continue; and (h) if the 2020 Resolution did not authorise Ms Packer to sign the 2020 Contract (or subsequent contracts), the appellants have suffered no substantial injustice because all that has happened is that SAS continues to be the strata manager from 2020 when it had been the strata manager for years before with the appellants' support and throughout those periods the appellants have had the benefit of the services of SAS. -- 24 of 47 -- [2026] WASC 328 BYDDER J Page 25 Consideration There must be a written strata management contract between the Company and SAS for SAS to be authorised to perform functions as a strata manager 93 Subject to the Act and to any restriction imposed or direction given by ordinary resolution of a strata company, the strata company's governing body is to perform the strata company's functions.63 94 A strata company's governing body is called the council of the strata company.64 The council must be constituted and perform its functions in accordance with the Act and the scheme by-laws.65 95 As the Scheme comprises only two lots, its Council consists of all of the owners of those lots.66 However, as Lot 2 is co-owned only one of the appellants is eligible to be a member of the Council, as nominated by them or determined pursuant to sch 1 cl 4(6).67 96 A strata company may authorise a person, called a strata manager, to perform a specified scheme function.68 The authorisation is subject to any conditions specified by the strata company and may be varied or revoked by the strata company.69 97 Since 1 May 2020, when the Strata Titles Amendment Act 2018 (WA) pt 2 (Amendment Act) commenced operation, the strata company's authorisation has not been enough for a person to be authorised to perform functions as a strata manager. Section 144 requires that a written strata management contract addressing the matters set out in s 145(1) also be in force between the strata manager and the strata company.70 63 The Act s 135(1). 64 The Act s 14(6). 65 The Act s 135(2). 66 The Act s 39 and sch 1 cl 4(3). The by-laws provided for by the Act sch 1 and sch 2 apply to the Scheme, because they have not been amended or repealed and no additional by-laws have been made under the Act s 44: ts 24. 67 I note that the Company has from time to time passed ordinary resolutions 'that the number of Strata Council members consist of three owners' (see for example BD 635, which is a page from the minutes of the 2020 AGM). 68 The Act s 143(1). The strata manager cannot be authorised to perform any of the functions specified in the Act s 143(5). Further, if the strata company's performance of the function requires a particular kind of resolution, the strata manager may perform the function only if a vote has been taken on a proposed resolution and it has been passed as a resolution of the relevant kind: the Act s 143(3). 69 The Act s 143(2). 70 Transitional provisions exist which preserve the operation of certain contracts in existence on 1 May 2020 for up to six months: the Act sch 5 cl 13. -- 25 of 47 -- [2026] WASC 328 BYDDER J Page 26 98 It appears to be accepted that SAS has been the strata manager for the Scheme from 2001 until at least 1 May 2020 (or possibly up to six months later, depending on the operation of the transitional provisions).71 Since that time, SAS will only be (or have been) authorised to perform functions as a strata manager for the Company if a written strata management contract with the Company is (or was) in force. Executing documents on behalf of the Company: s 118 of the Act 99 A strata company is a body corporate that has perpetual succession, is capable of suing and being sued in its own name and has, subject to the Act, all the powers of a natural person that are capable of being exercised by a body corporate.72 A strata company may have a common seal, but it does not have to have one.73 100 Part 8 of the Act deals with strata companies in more detail. Part 8 division 1 is headed 'Functions'74 and has eight subdivisions. Subdivision 8 is headed 'Limitations' and comprises s 117 (headed 'Limitations on exercise of powers') and s 118 (headed 'Common seal and execution of documents'). 101 Section 118 provides: (1) If a strata company has a common seal – (a) the seal may be used only as authorised by ordinary resolution of the strata company; and (b) its use must be attested by the signatures of 2 members of the council of the strata company. (2) A strata company may, by ordinary resolution, authorise any of the following to execute documents on its behalf subject to any conditions or limitations specified in the resolution – (a) a member of the council of the strata company; or (b) members of the council of the strata company acting jointly; or (c) a strata manager of the strata company. 71 BD 6 (order sought 4(a)). 72 The Act s 14(5). 73 The Act s 14(7). 74 Unlike section headings, the headings of the Parts, divisions and subdivisions into which a written law such as the Act is divided form part of that written law: Interpretation Act 1984 (WA) s 32. -- 26 of 47 -- [2026] WASC 328 BYDDER J Page 27 (3) A document is duly executed by a strata company if – (a) the common seal of the strata company is applied to it in accordance with this section; or (b) the document is signed on behalf of the strata company by a person or persons in accordance with an authority conferred under this section. (4) For a document in an electronic form that bears a facsimile of the common seal and a facsimile of the signatures required to attest its use, the sealed document as it appears electronically, or as it appears when printed on paper, has the same effect as if the common seal had been applied and attested in accordance with this section, unless there is evidence that the document was not executed by the strata company. 102 It is common ground that the strata company does not have a common seal.75 103 The only other basis under s 118 on which a person or persons may execute documents on behalf of a strata company is if the strata company has authorised that person or persons to do so by ordinary resolution. 104 A document will be duly executed by a strata company if the strata company's common seal has been applied to the document in accordance with s 118 of the Act or the document has been signed on the strata company's behalf in accordance with an authority conferred under s 118. The 2020 Resolution (and subsequent similar resolutions) 105 The Company relies on the 2020 Resolution (and subsequent similar resolutions) as authorising the Council to enter into strata management contracts. 106 As counsel for the Company properly accepted, the 2020 Resolution should be understood having regard to s 118 of the Act.76 On its terms, the 2020 Resolution authorises the Strata Council … to enter and execute contracts, agreements, undertakings or other legally binding arrangements from time to time, which are necessary to achieve the Strata Company's General Duty. 75 Appellants' submissions (AS) [23]; ts 9. 76 ts 9. -- 27 of 47 -- [2026] WASC 328 BYDDER J Page 28 107 As I have noted, the Council of the Company consists of the owner of Lot 1 (Ms Packer) and that co-owner of Lot 2 nominated by the appellants or determined pursuant to sch 1 cl 4(6). Section 118(2) only permits a person or persons to be authorised to execute documents on behalf of a strata company if: (a) the person is a member of the council of the strata company; (b) the persons are members of the council of the strata company acting jointly; or (c) the person is a strata manager of the strata company. 108 The 2020 Resolution does not authorise the Company’s strata manager to execute documents on the Company's behalf. Nor does the 2020 Resolution authorise any single member of the Council to execute documents on the Company's behalf.77 If the 2020 Resolution authorises anyone at all, it authorises the Council's members acting jointly. 109 It follows that the 2020 Resolution did not authorise Ms Packer acting alone to execute the 2020 Contract or any subsequent strata management contract on the Company's behalf. Any materially similar resolutions passed after the 2020 Resolution likewise will not have authorised Ms Packer acting alone to execute a strata management contract (or any other document). Unit 1's greater unit entitlement did not make any relevant difference 110 That the lot owned by Ms Packer has a greater unit entitlement than the appellants' lot says nothing of itself about whether Ms Packer was authorised to execute a strata management contract with SAS on behalf of the Company. Ms Packer's greater unit entitlement is relevant to her authority to do so only to the extent that the Act makes it relevant. 111 The only possible relevance of the greater unit entitlement to Ms Packer's authority to execute a strata management contract on behalf of the Company is in the context of voting on a proposed resolution of the Company. It is only in that context that the Act provides for voting by unit entitlement.78 In contrast unless the scheme 77 The reference to a member of a strata company's council in s 118(2)(a) could extend to an ordinary resolution authorising more than one member of the council to execute documents acting alone: Interpretation Act 1984 (WA) s 10(c). However, that is not what the 2020 Resolution purports to do. 78 See the Act pt 8 div 3 subdiv 1 and especially the Act s 122. -- 28 of 47 -- [2026] WASC 328 BYDDER J Page 29 by-laws otherwise provide, at Council meetings all matters must be determined by a simple majority vote.79 The Scheme's by-laws do not otherwise provide. 112 In her reasons, the learned Member observed that one of the appellants (Ms Fan) voted in favour of the 2020 Resolution at the 2020 AGM but, when Mr Kiddle sent the appellants the 2020 Contract, they did not sign it.80 The appellants were not required by the 2020 Resolution to sign the 2020 Contract. 113 The learned Member then referred to the absence of any minutes of a Council meeting, but inferred that in the circumstances of this case when the appellants refused to sign the 2020 Contract:81 [A] vote by the number of unit entitlements was undertaken. As Ms Packer, the owner of Lot 1, has more than 50% of the sum of the unit entitlements of the lots in the strata scheme, she signed the contract thereby satisfying the requirements of s 123(7)(b)(ii) of the [Act]. 114 The Tribunal went on to say of the 2022 Contract:82 By 2022 when the 2022 strata management contract was being considered, Mr Zhao and Ms Fan as the owners Lot 2 were unfinancial and therefore they were not eligible to cast a vote on an ordinary resolution. Ms Packer as the owner of Lot 1, was the only owner eligible to vote. It was not necessary to cast a vote as Ms Packer, as the sole owner entitled to vote, signed the 2022 strata management contract. Further, although it is not necessary to consider whether a vote by the number of unit entitlements was undertaken, it is clear that Ms Packer has more than 50% of the sum of the unit entitlements of the lots in the strata scheme and therefore meets the requirements of s 123(7)(b)(ii) of the [Act]. 115 Section 123(7)(b)(ii) provides: A resolution of a strata company is an ordinary resolution if – … (b) it is passed when counted as required under section 122 (1)(c) – … 79 The Act sch 1 cl 8(1). 80 Reasons [52]. 81 Reasons [54]. 82 Reasons [56]. -- 29 of 47 -- [2026] WASC 328 BYDDER J Page 30 (ii) by unit entitlements – by more than 50% of the sum of the unit entitlements of the lots in the scheme for which votes are cast. 116 As is apparent from the statutory text of s 123(7)(b)(ii), that provision is concerned with voting on ordinary resolutions of a strata company. 117 If a strata company is to pass a resolution (be it an ordinary resolution or one of the other kinds of resolution contemplated by s 123), it must do so in accordance with the requirements of the Act. In the case of ordinary resolutions, those requirements include that: (a) if the proposed resolution is to be put to the members of a strata company at a general meeting:83 (i) all owners of lots in the strata titles scheme must be given at least 14 days' notice of the meeting and the notice must include the date, time and venue of the meeting, notice of the general nature of the business to be conducted at the meeting and notice of each method of voting that is acceptable to the strata company;84 and (ii) a quorum must be present at the time when the meeting proceeds to business;85 (b) if the proposed resolution is to be put to the members of a strata company outside of a general meeting:86 (i) 14 days' notice of the terms of the proposed resolution must be given to each member of the strata company before voting on the resolution opens;87 and (ii) the notice must specify how the vote will be conducted, how a vote may be submitted, the closing date for submitting a vote, how the owner of a lot will know 83 The Act s 120(3)(a). There are two kinds of general meeting of a strata company, namely an annual general meeting and an extraordinary general meeting: the Act s 127 and s 128. 84 The Act s 129. 85 The Act s 130 and s 131. For a 2-lot scheme such as the Scheme, there will be a quorum at a general meeting 'if there are present persons who are entitled to cast the vote attached to each of the lots': s 130(2). 86 The Act s 120(3)(b). 87 The Act s 123(7)(a). -- 30 of 47 -- [2026] WASC 328 BYDDER J Page 31 their vote has been cast and how the results of the vote will be published.88 118 The 2020 Resolution does not purport to modify or depart from those requirements. The 2020 Resolution could not do so. Any resolution passed by a strata company must be consistent with the Act. 119 As counsel for the Company properly accepted, it was open to Ms Packer to propose an ordinary resolution of the Company authorising her to sign a strata management contract with SAS on behalf of the Company and demand that the vote be counted by the number of unit entitlements, but she did not do so.89 There is no other basis on which Ms Packer's lot having a greater unit entitlement could cause Ms Packer to be authorised acting alone to execute a strata management contract on the Company's behalf. Necessity 120 Reliance was also placed by the Company on it being 'necessary' to execute the 2020 Contract. 121 It was plainly necessary for there to be a strata management contract between the Company and SAS if SAS was to continue to be authorised to perform functions as a strata manager for the Company. That does not provide any basis for departing from the requirements of the Act. Indeed, as I have noted the Act provided a mechanism through which Ms Packer could have obtained the authority to execute the 2020 Contract acting alone on behalf of the Company and over the opposition of the appellants. Ms Packer did not avail herself of that mechanism. 122 Further, the 2020 Resolution does not require the Council's members acting jointly to execute any particular document. It only authorises them to execute legally binding documents of the kind described in the 2020 Resolution. The appellants' decision not to sign the 2020 Contract - a decision they were entitled to make - did not create any necessity and did not give rise to Ms Packer having authority to execute the 2020 Contract acting alone on behalf of the Company which she did not otherwise have. 88 The Act s 120(8)(b) and the Strata Titles (General) Regulations 2019 (WA) r 89. 89 ts 12 - 14. -- 31 of 47 -- [2026] WASC 328 BYDDER J Page 32 The answer to Question 1 123 For these reasons, Ms Packer was not authorised: (a) under s 118 by the 2020 Resolution (or any similarly-worded resolution); or (b) solely by virtue of owning the lot with a majority of the Scheme's unit entitlements, to execute strata management contracts between the Company and SAS from 2020. Question 2: was Ms Packer authorised under s 118 to enter into a cost agreement between the Company and GV Lawyers? The Tribunal's reasons 124 The cost agreement between the Company and GV Lawyers was only signed by Ms Packer.90 However, the Tribunal concluded that GV Lawyers were validly appointed:91 For similar reasons to the appointment of the strata manager, the engagement of legal representation requires an ordinary resolution of the strata company. As previously stated, and repeated here, apart from limited exceptions as set out in s 120(2) of the [Act], Mr Zhao and Ms Fan are only eligible to vote on ordinary resolutions when they are not 'unfinancial'. As Mr Zhao and Ms Fan concede they have not paid strata levies since about July 2020 they are 'unfinancial' and therefore cannot cast a vote on any ordinary resolution (apart from the limited exceptions set out in s 120(2) of the [Act]). Consequently, I am satisfied that GV Lawyers were validly appointed where only Ms Packer signed the cost agreement [on 4 October 2023]. Consequently, the order sought by Mr Zhao and Ms Fan requiring the reimbursement to the strata company of all legal expenses paid is without merit. The appellants' submissions 125 The appellants made materially identical submissions in respect of Ms Packer's authority to execute an agreement with GV Lawyers on behalf of the Company to the submissions they made in respect of Ms Packer's authority to execute a strata management agreement with SAS on behalf of the Company. 90 Reasons [85]. 91 Reasons [87]. -- 32 of 47 -- [2026] WASC 328 BYDDER J Page 33 The Company's submissions 126 The Company adopted the reasoning of the Tribunal. Consideration 127 For the reasons I gave in respect of Question 1, neither the 2020 Resolution nor any similarly-worded resolution authorised Ms Packer acting alone to execute any document, including a cost agreement with GV Lawyers, on behalf of the Company. Further, that Ms Packer owned the lot with the majority of the Scheme's total unit entitlements did not of itself provide her with authority to execute a cost agreement with GV Lawyers on behalf of the Company. The answer to Question 2 128 It follows that Ms Packer was not authorised: (a) under s 118 by the 2020 Resolution (or any similarly-worded resolution); or (b) solely by virtue of owning the lot with a majority of the Scheme's unit entitlements, to execute a cost agreement with GV Lawyers on behalf of the Company. Question 3: if the appellants were 'unfinancial', did that materially affect their rights as a council member or in relation to the execution of strata management contracts? The Tribunal's reasons and the parties' submissions 129 I have already referred to the Tribunal's reasons and the parties' submissions as to the effect of being 'unfinancial'. Consideration 130 If the appellants were 'unfinancial', that would only be relevant if an ordinary resolution was proposed and put to a vote (because the owner of a lot with an outstanding amount recoverable under the Act owed to the strata company is not entitled to cast the vote attached to the lot on an ordinary resolution).92 Being 'unfinancial' did not affect the ability of either appellant to serve as a Council member or to be authorised to execute documents on behalf of the Company. 92 The Act s 120(2). -- 33 of 47 -- [2026] WASC 328 BYDDER J Page 34 131 Ms Packer did not propose an ordinary resolution which would have authorised her to sign a strata management contract with SAS on behalf of the Company. In those circumstances, if the appellants were 'unfinancial', that was irrelevant to whether Ms Packer had authority acting alone to execute a strata management contract with SAS on behalf of the Company. The answer to Question 3 132 If the appellants were 'unfinancial', in the sense that, to use the words of s 120(2)(b) there was 'an outstanding amount recoverable under [the Act] owed to the strata company by the owner of the lot', that did not materially affect their position in respect of being a Council member or the execution of documents such as a strata management contact or cost agreement. Question 4: was there an outstanding amount recoverable under the Act owed to the Company by the appellants as owners of Lot 2, such that they could not cast the vote attached to Lot 2 on an ordinary resolution? The Tribunal's reasons 133 As I have noted, the Tribunal correctly held (and the Company properly conceded before the Tribunal) that a strata company cannot establish an administrative fund unless required to do so by the strata scheme's by-laws. As the Scheme's by-laws did not so require, the Company could not establish an administrative fund. 134 As I have also noted, the Tribunal found that the appellants were 'unfinancial' because the appellants accept that they have not paid any strata levies to the Company since about July 2020. It is not in dispute that the appellants have not paid any strata levies to the Company since that time. The appellants' submissions 135 So far as this question of law is concerned, the appellants rely on the Tribunal's holding and the Company's concession93 to contend that the Company was not empowered to impose strata levies before the Tribunal made its orders and they were not 'unfinancial'. 93 AS [43], [60] - [61]. -- 34 of 47 -- [2026] WASC 328 BYDDER J Page 35 The Company's submissions 136 The Company submits that the Company (with the appellants' support) resolved at general meetings to establish an administrative fund for the Company, or at least an annual budget with strata levies. Those resolutions should be respected and given effect, even though the Scheme by-laws had not been changed.94 Consideration 137 Section 120(1) and s 120(2) provide: (1) The owner of each lot in a strata titles scheme is entitled to 1 vote on a proposed resolution of the strata company. (2) However, the owner of a lot is not entitled to cast the vote attached to the lot if - (a) the resolution is not required to be a unanimous resolution or a resolution without dissent and is not a resolution for postponing the expiry day for a leasehold scheme or a termination resolution; and (b) there is an outstanding amount recoverable under this Act owed to the strata company by the owner of the lot. 138 The resolutions relevant to this appeal were ordinary resolutions and as such were not unanimous resolutions or resolutions without dissent.95 As is apparent from what I have already said, none of the resolutions relevant to this appeal was of a kind otherwise described in s 120(2)(a). 139 The strata levies imposed by the Company at its AGMs were imposed by adopting an annual administration budget and setting an 'administration levy' or 'administrative fund levy' calculated by reference to unit entitlement, due and payable quarterly.96 140 Section 100(1) provides: A strata company must – (a) establish a fund (an administrative fund) for administrative expenses that is sufficient in the opinion of the strata company for the control and management of the common property, for the 94 RS [29]; ts 24 - 26. 95 The Act s 123. 96 ts 28 - 29; BD 620 - 621, 623, 627, 630 - 631, 636, 641, 648, 656. -- 35 of 47 -- [2026] WASC 328 BYDDER J Page 36 payment of any premiums of insurance and the discharge of any other obligation of the strata company; and (b) determine the amounts to be raised for payment into the administrative fund; and (c) raise amounts so determined by levying contributions on owners of lots - (i) in proportion to the unit entitlements of their respective lots; or (ii) if the scheme by-laws provide for a different basis for levying contributions, in accordance with that basis; and (d) recover from the owner of a lot, by action in a court of competent jurisdiction if necessary, any sum of money expended by the company for repairs or work done by it or at its direction in complying with a notice issued, or order made, under a written law in respect of the lot. 141 Section 100(4) to s 100(6) provides: (4) Any contribution levied under this section – (a) becomes due and payable to the strata company in accordance with the terms of the decision to make the levy; and (b) if not paid when it becomes due and payable, bears interest on the amount unpaid at the rate of simple interest specified in the regulations, unless the company determines (either generally or in a particular case) that an unpaid contribution bears no interest or interest at a lesser rate; and (c) including interest accrued under paragraph (b), may be recovered as a debt by the strata company in a court of competent jurisdiction and the strata company may agree to a compromise of such a debt. (5) Interest paid or recovered under subsection (4) or (6) forms part of the fund to which the contribution belongs. (6) The owner of a lot is liable in respect of any contribution levied under this section and any interest on the contribution, jointly and severally with any person who was liable to pay that contribution and interest when that owner became the owner of -- 36 of 47 -- [2026] WASC 328 BYDDER J Page 37 that lot, to pay so much of that contribution and interest as was unpaid when the owner became the owner of that lot. 142 The Company could not establish an administrative fund under s 100(1)(a) throughout the period during which the Company resolved to impose an administration levy or an administrative fund levy. This was because, as the Tribunal correctly accepted, the Scheme by-laws did not require the Company to establish an administrative fund. 143 The provisions in s 100(1)(c) for levying contributions from owners and in s 100(4) for the recovery of those contributions are only engaged in the context of an administrative fund or a reserve fund. The Company did not have an administrative fund so those provisions were not engaged on that basis. 144 Section 100(2)(a) permits a strata company to: [E]stablish a fund (a reserve fund) for the purpose of accumulating funds to meet contingent expenses, other than those of a routine nature, and other major expenses of the strata company likely to arise in the future. 145 Contributions can be levied on owners and recovered for that purpose (s 100(2)(c) and s 100(4)). 146 However, the expenses contemplated by the Company's budgets (which the Company was required to have under s 102) appear to be 'of a routine nature'. In addition, counsel for the Company said that his understanding was that the Company has never had a reserve fund.97 147 It follows that the Company could neither levy contributions from the owners nor recover those contributions under s 100(1)(c) or s 100(4). 148 No other basis98 appears to have been relied on to support the existence, to paraphrase s 120(2)(b), of an outstanding amount recoverable under the Act owed to the Company by the appellants as the owners of Lot 2. 149 It is unnecessary for me to consider whether the appellants may be liable to Ms Packer or the Company on any other basis.99 Question 4 is 97 ts 27. 98 Such as under the Act sch 2A cl 53E in relation to insurance premiums. 99 See the Act s 211. -- 37 of 47 -- [2026] WASC 328 BYDDER J Page 38 concerned with whether the appellants were 'unfinancial' for the purpose of determining whether they were eligible to cast the vote attached to Lot 2 on an ordinary resolution. The answer to Question 4 150 As there was no outstanding amount recoverable under the Act which the appellants owed to the Company, the appellants were eligible to cast the vote attached to Lot 2 on ordinary resolutions at all relevant times. They were not 'unfinancial'. Question 5 - could the Tribunal in resolving a scheme dispute under pt 13 make orders authorising the Company to establish an administrative fund without an application having been made under s 140(3)? The Tribunal's reasons 151 The Tribunal acknowledged that no application had been made to the Tribunal under s 140(3) of the Act and that what the Tribunal had before it was the appellants' application to resolve a scheme dispute under s 197(4) of the Act. However, the Tribunal considered that it was 'entirely appropriate for the [Company] to have set up the administrative fund for this two-lot strata scheme and for its continued operation'.100 152 The Tribunal gave a number of reasons for that view, but those reasons do not address the question of whether the Tribunal can make orders authorising an administrative fund without an application under s 140(3) of the Act. Instead, it appears with respect that such a power was assumed in making the orders. Appellants' submissions 153 The appellants submit that under s 140(3), there needs to be an application by a member of the strata scheme. If there is an application, the Tribunal has a discretion whether or not to grant the application. 154 In the absence of a s 140(3) application, the Tribunal cannot make orders in resolving a scheme dispute on an application under s 197(4) of the Act that would require a strata company to establish an administrative fund. Otherwise, s 140(3) would be rendered superfluous. 100 Reasons [66]. -- 38 of 47 -- [2026] WASC 328 BYDDER J Page 39 155 Further, having regard to the decision of the Tribunal in Rechichi and Johnston101 (Rechichi), the dispute between the parties is relevantly whether the Company has the power to establish an administrative fund under the Act. There is a specific provision - s 140 - governing this subject matter which is intended to deal comprehensively with 'small lot' schemes and the limits imposed by s 140(1)(b) and s 140(3) cannot be by-passed by s 197. To do otherwise would be inconsistent with the purpose of s 140(1)(b) and s 140(3). The Company's submissions 156 The Company adopted the Tribunal's reasoning. 157 The Company also submitted that the principles in Rechichi are relevant but can be distinguished because the appellants did not properly invoke s 140(3). 158 Alternatively, the Company submitted that Rechichi is irrelevant because this appeal is concerned with the interpretation of s 100 and s 120 and the validity of voting rights. The appeal does not concern the interaction between specific statutory provisions and pt 13 at all and the appellants have sought no substantive relief concerning an administrative fund. Consideration 159 Section 140 of the Act provides: (1) A strata company for a 2-lot scheme – (a) may, but is not required to, perform a designated function; and (b) cannot establish an administrative fund unless required to do so by scheme by-laws. (2) The scheme by-laws for a 3, 4 or 5-lot scheme may exempt the strata company from a designated function. (3) However, the Tribunal may, on application by a member of the strata company, require a strata company to perform a designated function despite this section. 101 Rechichi and Johnston [2021] WASAT 79 (Member McGivern). -- 39 of 47 -- [2026] WASC 328 BYDDER J Page 40 (4) In this section – designated function means a function conferred under any of the following sections or included in this definition by the regulations — Section Description for information only Section 100(1)(a) Administrative fund Section 101 Accounting records and statement of account Section 104(1)(b) Minutes of meetings Section 104(3)(a) Letterbox Section 105(1) Roll to be kept by strata company. 160 Section 197(4) of the Act provides: An application for resolution of a scheme dispute can be made to the Tribunal by a party to the dispute. 161 I have already referred above at [10] to the relevant definition of a 'scheme dispute' in s 197 of the Act. In my opinion, a dispute about the imposition of an administrative levy can constitute a 'scheme dispute', as it can involve a dispute between scheme participants about: (a) the scheme documents, including the validity of scheme by-laws; (b) a resolution or decision of a strata company or the council of a strata company, including its validity; or (c) any other matter arising under this Act or the scheme by-laws. 162 Further, the administrative levies imposed by the Company formed part of the scheme dispute as defined by the appellants' application under s 197(4) of the Act. See in this regard the orders sought in that application and issue 2 of the appellants' statement of issues, facts and contentions before the Tribunal, set out above at [12] and [15]. 163 The question remains whether s 140 operates to exclude its subject matter from the scope of pt 13. I do not accept the Company's submission that this appeal does not concern the interaction between specific statutory provisions and pt 13. The interaction between s 140 -- 40 of 47 -- [2026] WASC 328 BYDDER J Page 41 and pt 13 has been raised by the appellants among the questions on which they sought to rely in their appeal. 164 In Rechichi, the Tribunal considered how specific provisions of the Act interact with the Tribunal's jurisdiction to resolve scheme disputes under pt 13 of the Act. Member McGivern said:102 21 The amendments to the [Act] which commenced on 1 May 2020 included, as one of the major reforms, the introduction of Pt 13 (headed 'Tribunal proceedings'), under which: a) the Tribunal has, under s 197, a very broad power to resolve 'scheme disputes'; and b) in 'a proceeding under [the] Act', the Tribunal may: i) under s 199, make a declaration concerning a matter in the proceeding instead of, or in addition to, any order the Tribunal may make; and ii) under s 200, make any order it considers appropriate to resolve the dispute or proceeding. 22 The latter provisions are, in essence, remedial. Although the power to make orders or declaration is very broad, the merits of the substantive matters in the dispute are the underlying basis for doing so, and must be considered and determined before the appropriate relief can be decided upon. 23 In terms of dealing with the substantive merits, as noted above, the Tribunal has jurisdiction under s 197 is to resolve 'scheme disputes'. Relevantly in that regard: a) pursuant to s 3(1), the term 'scheme dispute' takes its meaning from s 197 itself which, by reference to both subject matter and parties, relevantly describes various classes of dispute as being within and outside its scope; b) the classes of dispute specified as being scheme disputes under s 197(1) relevantly include [those quoted above at [10]]; 102 Rechichi [21] - [27] (footnotes omitted). See also Andrews and The Owners of Coralie Gardens Strata Plan 44374 [2022] WASAT 2 [37] - [43] (Member McGivern); Redset Nominees Pty Ltd and Owners of Spinnakers Apartments Strata Plan 53824 [2021] WASAT 96 [28] - [43] (Member McGivern). -- 41 of 47 -- [2026] WASC 328 BYDDER J Page 42 c) 'scheme participants' is defined in s 197(2) to include each of: i) the strata company for a strata titles scheme; ii) a member of the strata titles scheme (in turn defined [by s 3(1) read with s 14(8)] to mean owners for the time being of lots in the scheme); and d) pursuant to s 12, 'scheme documents' relevantly include a scheme plan. 24 Properly construed, the Tribunal's jurisdiction to resolve scheme disputes under s 197 is so broad as to include and incorporate (at least in disputes between scheme participants) the jurisdiction conferred under other more specific provisions (relevantly, s 90 and s 35) of the [Act]. That view is supported by the following: a) Pursuant to s 209, a proceeding before the Tribunal under the [Act] comes within the Tribunal's original jurisdiction, unless otherwise provided. b) Matters in the Tribunal's review jurisdiction are identified in s 27 and s 28, and each of those provisions include the following terms: Part 13 does not apply to a proceeding under this section (which is a proceeding within the Tribunal's review jurisdiction). c) The express exclusion of the application of Pt 13 to matters within the Tribunal's review jurisdiction suggests that Pt 13 is otherwise intended to apply. d) Reading the Act as a whole, the provisions of Pt 13 are to be understood as being of general application (subject to their own terms) to matters within the Tribunal's original jurisdiction. e) The express terms of s 197(1)(a) make it clear that, unless excluded by the terms of s 197(3), any dispute between scheme participants 'arising under the Act' falls within the Tribunal's jurisdiction to resolve scheme disputes. i) It is clear on the face of that provision that disputes arising under other parts of the [Act] are caught (the provision could, but does not, refer to disputes, for example, 'under this Part'). -- 42 of 47 -- [2026] WASC 328 BYDDER J Page 43 ii) Similarly, although s 197(3) excludes a range of matters from being a 'scheme dispute' there is no general 'carve out' provision which would exclude an application brought under any other more specific provision (which might operate in a similar manner to s 83(6) of the Prior [Act]103). Rather, particular classes of matter are identified, as 'not [being] scheme disputes' including by reference to disputes under other Parts of the [Act] (again, the implication being that it is necessary to exclude those Parts, which would otherwise be scheme disputes). 25 Nevertheless, it also follows from reading the [Act] as a whole that the broad jurisdiction of the Tribunal to deal with a dispute under s 197, and its discretionary power to make orders under s 200, is subject to any specific limit imposed by the [Act] in connection with the subject matter. 26 Accordingly: a) where a dispute is properly characterised as being a dispute about subject matter falling under a specific provision or provisions of the [Act] (in this case, s 90), then the jurisdiction of the Tribunal to deal with that dispute is limited by the terms of that provision / those provisions; and b) where the subject matter of the dispute in question and/or the relief sought falls outside the scope of any specific provisions, then the Tribunal must decide: i) whether the Act, properly construed, evinces an intention to 'cover the field' of the subject matter within the constraints of the specific provisions; or ii) whether it has 'residual' power to deal with it under its broad jurisdiction in Pt 13. 27 In this case, therefore, the analysis of the Tribunal's jurisdiction must begin with s 90, pursuant to which the application is brought. If the subject matter of the dispute between the parties, and specifically the power to make either or both of the Proposed Orders, falls within the parameters of that section then the Tribunal will have jurisdiction to determine the matter. If the subject matters of dispute falls outside the scope of s 90, then 103 Which provided, in relation to the general powers of the Tribunal to make orders under s 86(1) that: 'Nothing in this Part affects the generality of subsection (1), but an order in respect of any matter referred to in any other section of this Part shall not be made under this section.' -- 43 of 47 -- [2026] WASC 328 BYDDER J Page 44 the question will be whether it may nevertheless be dealt with under Pt 13 (or other specific provision/s in the [Act]). 165 I respectfully agree with the learned Member's analysis of the interaction between specific provisions of the Act and pt 13. While Rechichi was concerned with the interaction between s 90 and pt 13, the learned Member's analysis is relevant to considering the interaction between s 140 and pt 13. 166 In general terms the subject matter of s 140 is to make special rules for strata titles schemes comprising 2, 3, 4 or 5 lots. Those special rules allow for the scheme by-laws for a 3, 4 or 5-lot scheme to exempt the scheme's strata company from a designated function which the Act would otherwise require it to perform. They also relieve the strata company for a 2-lot scheme from having to perform designated functions which the Act would otherwise require it to perform, although (with one exception) the strata company can choose to perform a designated function. The exception is that for a 2-lot scheme, the strata company cannot establish an administrative fund unless required to do so by scheme by-laws. As I have noted, that exception is relevant to this appeal. 167 All of this is subject to s 140(3). Under that provision, a member of the strata company of a 2, 3, 4 or 5-lot scheme can apply to the Tribunal to require the strata company to perform a designated function despite s 140 (and, it would appear, any scheme by-laws which are relevant to the operation of s 140). 168 As scheme by-laws can be made to engage s 140 (as contemplated by s 140(2)) or overcome the prohibition on establishing an administrative fund (as contemplated by s 140(1)(b)), an application to the Tribunal under s 140(3) at least suggests the existence of a dispute about whether the strata company should perform the relevant designated function. The question is whether s 140(3) is intended to cover the field in relation to those disputes or leaves room for the operation of pt 13. 169 Unlike an application for the resolution of a scheme dispute under pt 13, which can be made by any scheme participant including the strata company, only a member of the strata company can make an application under s 140(3). That is a significant constraint on the Tribunal's jurisdiction under s 140(3) as compared with its jurisdiction under pt 13. -- 44 of 47 -- [2026] WASC 328 BYDDER J Page 45 170 Further, under s 200(4) the Tribunal can make orders with retroactive effect to resolve a scheme dispute. Section 140(3) does not expressly confer power on the Tribunal to require that a strata company perform a designated function with retroactive effect and such a power is not lightly to be implied. In my opinion, it should not be implied in relation to s 140(3). To do so may alter the rights and liabilities of the strata company and its members with retroactive effect. That the power under s 140(3) can only be exercised prospectively is another significant constraint on the Tribunal's jurisdiction under s 140(3) as compared with its jurisdiction under pt 13. 171 In light of those significant constraints on the Tribunal's jurisdiction, in my opinion s 140 covers the field in relation to disputes about whether the strata company should perform a designated function as defined by s 140(4). The answer to Question 5 172 For those reasons, in resolving a scheme dispute under pt 13 the Tribunal could not make orders authorising the Company to establish an administrative fund. The Tribunal could only prospectively require the Company to perform the designated function of establishing an administrative fund under s 100(1)(a) in the context of an application made to the Tribunal by a member of the Scheme under s 140(3). Substantial injustice 173 The Company submits that even if the Tribunal erred, the appellants have suffered no injustice as they have had the benefit of the services of SAS as strata manager, they voted in favour of resolutions relating to strata levies and they have charged their commercial tenants in respect of strata levies.104 174 Those are matters which go to whether the Tribunal should make declarations under s 199 or orders under s 200. If such orders are to be made, they should be made on a sound legal basis. As the Tribunal held in Rechichi,105 '[a]lthough the power to make orders or declaration is very broad, the merits of the substantive matters in the dispute are the underlying basis for doing so, and must be considered and determined before the appropriate relief can be decided upon.' 104 See for example ts 21 - 22, 31. 105 Rechichi [22] (Member McGivern). -- 45 of 47 -- [2026] WASC 328 BYDDER J Page 46 175 The Tribunal's declarations and orders depended on the findings made by the Tribunal.106 I have concluded that the Tribunal erred in making several of those findings, as set out above. Disposition 176 The appellants should be granted an extension of time in which to appeal, they should have leave to appeal on the five questions identified above at [76], the appeal should be allowed and the declarations and orders made by the Tribunal should be set aside. 177 It would not be appropriate for this court on appeal to make any declarations or orders in their place, as the appellants have invited the court to do. Whether any declarations or orders are made on the appellants' application to the Tribunal under s 197(4) will depend on a range of matters that are not before this court. 178 Instead the matter should be sent back to the Tribunal, differently constituted, for reconsideration consistent with these reasons and with the opportunity for the hearing of further evidence as the Tribunal considers appropriate. 179 I will hear the parties on the orders that should be made to give effect to these reasons, including as to the costs order made against the appellants by the Tribunal and the costs of this appeal. 106 Reasons [89], [93] - [94], [97], [100], [102], [105]. -- 46 of 47 -- [2026] WASC 328 BYDDER J Page 47 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. JS Associate to the Hon Justice Bydder 17 AUGUST 2026 -- 47 of 47 --