Skip to main content

In this video, OMB Solicitors Partner, Juliette Nairn reflects on the recent Western Australia Supreme Court decision of Thillagaratnam v Doan [2022] WASC 185.


Welcome, everybody. Today, I want to do a little bit of storytelling. We’re going to go to Western Australia, and within Western Australia, we’re dealing with the Supreme Court of Western Australia, and we’re going to a body corporate, a strata lot within Western Australia.

Now, within this lot, where I’m going to is the time-old problem of a nuisance or very difficult lot owner. This lot owner’s name is Mr. Pratt, and Mr. Pratt actually lives in level one of this body corporate, and he’s been a lot owner within the body corporate for let’s say, two decades.

Regarding Mr. Pratt, his behaviour as an individual lot owner can only be described as antisocial. But it’s really to the extent of breaches of restraining orders, banging hammers on walls or doors, the slightest noise, opening windows and screaming up or threatening other lot owners or tenants within a body corporate.

These are obviously lot owners who are meant to be living as part of a community title scheme in Western Australia. However, despite Mr. Pratt’s outrageous and significantly detrimental behaviour within this strata scheme, and also his breaching of restraining orders and potentially contempt of court orders as well.

The parties involved in this Supreme Court litigation in Western Australia, which commenced back in 2015, 2016, are actually between the owner of the lot on the ground floor, whose name is Sarah, and the sale of Sarah’s lot to Henry, brand new purchaser within the body corporate.

In 2015, Sarah, after living in the lot for a period of time, made a decision that she would sell the lot and so entered into a contract of sale for the sale of the lot to Henry. Henry purchased the lot and unfortunately, as a result of purchasing that lot, then realised that Sarah lived right underneath Mr. Pratt, who is the lot owner from Hell.

What then occurred is that Henry made a decision to file proceedings in the Supreme Court of Western Australia. Such proceedings had been going on for a number of years, and then recently in May 2022, a decision was handed down, and Henry was successful in rescinding his contract of sale with Sarah, and he got paid damages and compensation for the loss that he had suffered based on the rescission of that contract of sale.

The reason why Henry was successful is Henry argued and successfully argued before the Supreme Court that Sarah had failed to disclose a material piece of information that substantially affected the use and enjoyment of his lot or the common property, and that was that this body corporate was dealing with a Mr. Pratt, the neighbour from hell.

When we deal with litigation from a body corporate perspective, we always have to remember and keep in mind that body corporate is created as a result of the buying and selling of the strata lot within our community living environment.

In this situation in Western Australia, which is a situation which should never arise between a contract of sale between two individuals, it is a folly of litigation that it resulted in this situation.

For Henry have to institute legal proceedings against Sarah and actually be successful with a Supreme Court as a result of the behaviour of a third party, Mr. Pratt, who has not been dealt with and appropriately controlled within the body corporate, is a misuse of the community title legislation in place, which should be to protect our member lot owners from people who exhibit that antisocial behaviour.

Particularly the judge said, I do not understand why I am dealing with this litigation. I feel very sorry for Sarah and Henry, who are both significantly affected to their detriment, financial detriment, emotional detriment, as a result of this litigation.

While Mr. Pratt sits to one side, unaffected by the consequences and the damage that he’s causing to other member lot owners within this body corporate. What could the body corporate do in Western Australia? And how does it apply to our situation in Queensland? Let’s look at it from a two-fold perspective.

One, regarding the contract of sale, in Western Australia, we do not have such a specific general condition of contract that deals with that use of the common property.

But under the BCCMA in Queensland, we do have those provisions where there are implied warranties that I, as a seller, am to disclose if I’m selling my lot to a potential purchaser. Furthermore, I could draft a specific special condition in that potential contract of sale.

So yes, this could have ramifications in Queensland on that aspect to the contract of sale. But the broader picture is what has been missed. In Queensland, we do not have appropriate legislation that supports us, and that’s why we’re constantly craving reform to deal with nuisance and antisocial lot owners who are just not suited to live in a community tidal living environment.

I am an advocate for the fact that body corporates need to be empowered to remove or have substantial penalties against individual lot owners who act in this manner in a detrimental way to the community title scheme over a period of time.

We are going to need statutory reform to achieve that basis and whether the legislators will have enough guts to make those type of decisions, I worry about that. What can we do in Queensland as at today’s date if we have that type of individual lot owner?

The body corporates and the committees need to be powered at very early stages to deal with the individual lot owners through Section 167 of our nuisance provisions in the BCCMA, to identify that, that behaviour is not appropriate, to take them through to the Magistrate’s Court by way of a complaint and summons under the Justices Act to seek fines and orders.

If an individual lot owner breaches those orders, take them to contempt of court for those orders, and ultimately not only through fines, but in prison, the lot owners, so they are removed from that environment until their behaviour changes.

Unfortunately, that’s the best we can do in Queensland body corporate law at the moment in applying this type of situation. The judge was very clear that he considered that type of litigation in Western Australia to be unacceptable and a folly and a waste of everyone’s money and an unjust result for both parties because it allowed Mr. Pratt, the offending lot owner, to get away with his behaviour within a body corporate.

If you live within a body corporate and you have individual lot owners that exhibit inappropriate behaviour to either tenants who are your occupiers or other member lot owners, you need to have very firm strategies in place.

So a case such as Sarah and Henry’s doesn’t impact upon you when you go to sell your lot. Please give us a phone call if you would like to discuss any aspects of that, and hopefully we can assist you at Body Corporate, if you have a member with this antisocial behaviour.

Book now