By Jason O’Meara, Senior Associate
Recent State Administrative Tribunal decisions have assisted in resolving the confusion within the strata industry as to whether the by-laws contained within the Strata Titles Act 1985 (WA) (as amended after 1 May 2020) (New By-laws) apply to strata companies created prior to 1 May 2020.
Background
Significant amendments to the Strata Titles Act 1985 (WA) came into effect from 1 May 2020 which had the effect of amending the default by-laws contained within Schedule 1 and Schedule 2 to of the Act.
Prior to the amendments, there was no doubt that the by-laws contained in Schedule 1 and Schedule 2 of the Act (prior to 1 May 2020) applied to all strata companies in Western Australia, subject to any registered amendments to those by-laws.
Unfortunately, as a result of a clause within the amendments to the Act and a decision of the State Administrative Tribunal considering that clause, it became unclear as to which by-laws applied to strata companies created prior to 1 May 2020.
Cause for Confusion
On 9 November 2021, the SAT delivered its judgment in Pearce and Clay.
The effect of the findings in Pearce and Clay created confusion as to whether the ‘default’ by-laws under the Act prior to 1 May 2020 continued to apply to strata companies rather than the New By-laws. Unfortunately, there was a difference of opinions on that point within the strata industry.
New By-laws Applied
Some time passed before any decisions were delivered by the Tribunal to assist with resolving the confusion until the recent decisions of:
- The Owners of 25, 27, 29, 31 Parry Street Fremantle Strata Plan 6413 and Efficient Building Team Pty Ltd (Efficient Building Case); and
- The Owners of Dianella Court Strata Plan 14961 and Subasic.
In both of the above decisions, the Tribunal has applied the New By-laws to strata companies which were created before 1 May 2020, subject to any registered amendments to those by-laws. Importantly, the same Member of the SAT who delivered the decision in Pearce and Clay was also the Member in the Efficient Building Case.
Outcome
Based on the above decisions, it appears that the New By-laws are the ‘default’ by-laws applicable to all strata companies, subject to any registered amendments to those by-laws.
This is important when strata companies are adding or amending their By-laws as it will determine which by-laws are included in their consolidated set of by-laws.
If you need assistance with preparing, amending or consolidating your strata company Scheme By-laws, please contact Jason O’Meara on (08) 9422 8910.
Disclaimer: This document contains a summary of relevant information or an opinion which is current at the date of publication. This document is not intended to constitute legal advice and does not take into account individual facts and circumstances. The reader must not rely on this document as advice.
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