Abraham v The Owners Strata Plan No 61419

Relevant Background

1. On 5 May 2021, the Tribunal made an order in proceedings with file number SC 20/47202 (May 2021 Order), being proceedings between the same parties to the present application. The May 2021 Order engaged the same provisions of the SSMA set out above and were in the following terms: 1 The Owners Corporation is to make available to the applicant, at a time and place to be agreed between the parties, and failing agreement, at the office of the strata managing agent at midday on 19 May 2021, the following documents or records: (1) Any records and registers which are required by the service agreement to be kept by the Building Manager and made available to the Owners Corporation (including without limitation any preventative maintenance records, any repairs and maintenance records, any register of maintenance and testing of emergency equipment, and any records in respect of evacuation plans), and (2) A monthly maintenance report, to be generated from Mybos, and (3) The hazardous goods register, and (4) Access to the records maintained in the Mybos computer program, to the extent that those records have not been provided to the applicant.
2. The Tribunal's reasons for making the May 2021 Order are set out in Abraham v The Owners Strata Plan No 61419 [2021] NSWCATCD 7.
3. On or about 5 August 2021, the Tribunal received an application by the applicant to renew proceedings SC 20/47202. Those renewal proceedings were given file number SC 21/34322. In those proceedings, the applicant alleged that not all documents required to be made available by the May 2021 Order had been provided by the Owners Corporation. Further, the applicant sought an order under s 238 of the SSMA removing Dr Alan Tankel as secretary of the Owners Corporation and from the strata committee.
4. On 16 December 2021, the Tribunal made the following orders in SC 21/34322 (December 2021 Orders): 1. By consent, by 31 January 2022 the Owners Corporation is to: (a) Make the boxes of documents relating to the legal proceedings in respect of the dispute between the Owners Corporation and the Service Provider available to the applicant for inspection, and (b) Provide "View Only" access to the Mybos records to the applicant. 2. The following issues remain to be determined by the Tribunal, and the decision in respect of those issues is reserved: (a) The applicant's right to view email communications to and from the email account committee@nautilusoc.org (b) the application to remove the secretary from the strata committee.
5. On 1 April 2022, the Tribunal made the following relevant order in SC 21/34322 (April 2022 Order): 1. The Owners Corporation is, at a time and place to be agreed, to make available for inspection all emails sent to or from the committee@nautilus.org email address which were sent or received by the Tribunal.
6. For completeness, in addition to the April 2022 Order, the Tribunal dismissed the applicant's application that Dr Tankel be removed as secretary and from the committee.

Present Application

1. In her application, the applicant alleged that the Owners Corporation had failed to provide "complete records" which had been the subject of 1. a request under s 182 of the SSMA dated 6 August 2020; 2. the May 2021 Order; 3. a request under s 182 of the SSMA dated 10 May 2021; 4. the December 2021 Orders; 5. a request under s 182 of the SSMA dated 25 January 2022; and 6. a request under s 182 of the SSMA dated 20 October 2022.
2. Having regard to these alleged failures, the applicant sought orders directing the Owners Corporation to provide the following: A. Legal Dispute between the Service Provider and the Owners Corporation

• All documentation and writings whatsoever including without limitation, emails, meeting notes, letters of advice, general correspondence and all communications to and from all parties involved in an advisory or other capacity including without limitation the following entities or persons: (a) the Law Society, (b) the solicitor appointed by the Law Society to determine the dispute (c) Breecass Pty Ltd and its legal representative (d) Mr Ian Ponton (e) the Owners Corporation and its legal representatives (f) Each and every individual committee member (g) the Strata Managers, SMS and/or its legal reprersentatives from the commencement date of dispute up to and including date of inspection. B. Amended Service Agreement with Duties Statement, Heads of Agreement:
• All documentation whatsoever including without limitation, emails, meeting notes, letters of advice and written communications to and from all parties including: (a) Deutsch Miller, (b) Breecass Pty Ltd. (c) Mr Ian Ponton (d) the legal representative for Breecass Pty Ltd and/or Mr Ian Ponton (e) the Owners Corporation and its legal representatives The Secretary is the only member of the Strata Committee that is able to provide this detail, as he is the only member of the Strata Committee that was totally involved in a (sic) negotiations and amendments to the Service Agreement. Other past Strata Committee members have advised that the Secretary used his own email address for many of these communications, rather than the official Strata Committee email, and we request that these emails, which form part of the Strata Records be provided by the Secretary C. Termination of Service Agreement and Replacement Service Provider and New Draft Agreement as proposed by Strata Committee for Decision at Owners Corporation General Meeting 4th February 2023:
• All documentation whatsoever including without limitation, emails, meeting notes, letters of advice and written communications to and from all parties including: (a) Owners Corporation legal representative, and in the event no legal representation has been sought then any party who has provided advice to the Strata Committee if in fact there is one (b) Breecass Pty Ltd. (c) Mr Ian Ponton (d) The Business Broker involved in the extensive discussions and negotiations in relation to the Service Provider matter (e) the legal representative for Breecass Pty Ltd and/or Mr Ian Ponton The reason for this request is that despite many requests for the Strata Committee to provide Owners sufficient detail in relation to this matter in order to appropriately vote at the 4th February 2022 (sic) General Meeting, they have refused D. All records requested and outlined in the 20th October 2022 Section 182 Request for Inspection of Records of Owners Corporation… E. Provide a copy of the signed copy of the "Attvest Premium Funding Contract/Loan Application" borrowing money to pay outstanding Insurance premium In relation to all the Strata Records we wish to inspect, we request the records be provided in an organized compilation of electronic records. This can be in the form of a folder in the form of a folder (sic) with all applicable files compiled in a single and labelled named folder or a single file with all records clearly labelled and identifiable.

1. The applicant relied upon a large volume of documentary material, submitted to the Tribunal both before and after the hearing conducted at Coffs Harbour on 7 June 2023. Mr Sisson, who represented the applicant at the hearing, gave evidence and took the Tribunal to a number of those documents.
2. The Owners Corporation relied upon a relatively short document filed shortly before the hearing on 7 June 2023. Dr Tankel and Dr Abraham gave evidence at the hearing. The Owners Corporation submitted a further short submission on 22 June 2023 in accordance with directions given by the Tribunal at the conclusion of the hearing.
3. The Tribunal has considered all of the material submitted by the parties. This is despite the applicant filing material following the hearing that ranged well outside the directions given by the Tribunal, a practice which is not to be encouraged. For the reasons that appear below, it is not necessary to set out in detail the many allegations and claims contained in that material. Suffice to say that there are very entrenched views on each side as to the conduct of the other.

Determination

1. During the hearing, the Tribunal was concerned to tether the application made by the applicant in this proceeding to the orders made by the Tribunal in previous proceedings. Mr Sisson for the applicant identified the following as the bases for the applicant's entitlement to the documents identified in categories A to E set out at [16] above: 1. As to categories A and B, the applicant relied upon the December 2021 Orders. 2. As to category C, Mr Sisson could not identify any previous order or any request by the applicant under s 182 of the SSMA at the hearing. Two days after the hearing, Mr Sisson submitted to the Tribunal (without leave) requests under s 182 of the SSMA dated 17 February 2023 and 1 May 2023. Given the breadth of the request dated 1 May 2023 (which could be interpreted to extend to "all Strata Records") it may be that the applicant relies upon that request to found a right to the documents in category C. 3. As to category D, on its face it invokes a request by the applicant under s 182 dated 2 October 2022. 4. As to category E, at the hearing, Mr Sisson relied upon certain paragraphs of the request under s 182 of the SSMA dated 2 October 2022. The request dated 17 February 2023 belatedly submitted by the applicant does appear to have a category directly relevant to category E.
2. It will be apparent that the only categories in respect of which the applicant points to previous orders of the Tribunal which she alleges were not complied with are categories A and B. The applicant rests her entitlement to an order requiring the Owners Corporation to provide the documents answering the description in categories C to E on requests made under s 182 of the SSMA which have not previously been the subject of an order under s 188 and, at least in the case of the requests dated 17 February 2023 and 1 May 2023, were made after the present application was filed.
3. The Tribunal is a creature of statute. By this application, the applicant has expressly (and solely) invoked the jurisdiction of the Tribunal granted by cl 8 of Sch 4 of the NCAT Act. Although the written submission provided by the Owners Corporation dated 1 June 2023 does briefly address each of categories C to E, it is plain on that submission that the Owners Corporation considered that the proceedings were "renewal proceedings" and that its primary submission was that it had complied with the May 2021 Order and the December 2021 Orders.
4. The Tribunal has considered whether it is open to it to, in effect, transmute renewal proceedings into an application under s 188 of the SSMA by reason of the "guiding principle" in s 36 of the NCAT Act "to facilitate the just, quick and cheap resolution of the real issues in the proceeding" and the procedural powers under s 38 of the NCAT Act: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. … (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
5. The breadth of those procedural powers was recently considered by the Court of Appeal in Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners - Strata Plan No 64807 [2023] NSWCA 188 (Sunaust), particularly at [160]-[162] per Basten AJA.
6. The issue in Sunaust, being the ability of the Tribunal to reopen a decision once pronounced, is far removed from the issue in the present case. It is difficult to see how it is just or in accordance with equity or good conscience to allow an applicant to fundamentally change the constitution of the proceedings and the nature of the jurisdiction it is invoking during the course of the hearing. That is particularly so having regard to the strict limits on the nature of renewal proceedings as imposed by cl 8 of Sch 4 of the NCAT Act, as construed by the Appeal Panel in Blessed and Mania. This is not simply a matter of "technicalities or legal forms".
7. Having regard to those matters, the Tribunal will dismiss the application insofar as it relates to categories C to E. As there is a very real likelihood of further disputation between the parties in relation to those categories in properly constituted proceedings, the Tribunal will refrain from making any observations as to whether the applicant is entitled under the SSMA to inspect those documents and whether the Owners Corporation has wrongfully failed to make those documents available for inspection.
8. That leaves for consideration categories A and B which the applicant submitted the Owners Corporation had failed to provide in compliance with the December 2021 Orders.
9. Order 1 of the December 2021 Orders were to be complied with by 31 January 2022. The present application was not lodged until at least 2 February 2023 (being the date of the signatures of the applicant and Mr Sisson on the renewal of proceedings application) and the relevant fee was not paid until 8 February 2023. In those circumstances, the application was not lodged with the period required by cl 8(2) of Sch 4 of the NCAT Act. That is not an insuperable barrier to the applicant in circumstances where the Tribunal has power to extend time under s 41 of the NCAT Act. Given the relatively minor delay and having regard to the principles set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, the Tribunal would be minded to extend the time up to 8 February 2023, save for the matters which appear below.
10. The application to renew proceedings SC 21/34322 on the basis that the December 2021 Orders were not complied with suffers from more fundamental difficulties. That is so whether categories A and B fall within the scope of the December 2021 Orders or not.
11. If the records the subject of categories A and B do fall within the scope of the December 2021 Orders, the NCAT Act and the relevant authorities disclose that it is not open to the Tribunal in renewal proceedings to make an order that those documents, which the Owners Corporation has failed to produce at the time ordered, be produced at a subsequent time. As the Appeal Panel stated in Mania at [34]: …an "other" order requiring the same work to be done but by a later date is not materially different and has the effect of relieving a party from original obligations (at least as to time) and not enforcing the original order which has not been complied with according to its terms.
12. The fact that what is sought by categories A and B is expressed in different terms to the December 2021 Orders does not assist the applicant if the records the subject of those categories were in fact within the scope of the December 2021 Orders. In Madic Construction at [23], the Appeal Panel stated: Adopting the principles enunciated at Mania at [35], the purpose of the renewal provision is to provide a mechanism for enforcement of or timely compliance with the original orders, it seems to us that the making of the same order but with the added requirement of a "certifier", neither has the effect of enforcing the original order nor ensuring the timely compliance with that order. Rather, an "other" order requiring the same work to be done but have it "certified" is not materially different.
13. Similarly, making an order that documents that fall within the terms of the original order, but describing those documents with more specificity is not "materially different" to the original order.
14. If the records the subject of categories A and B do not fall within the scope of the December 2021 Orders, then renewal proceedings are not an opportunity for the applicant to seek orders for the provision of different records. To repeat what the Appeal Panel stated in Long v Metromix Pty Ltd at [73], "renewal proceedings are not an opportunity to have the Tribunal hear that case all over again in the hope that the Tribunal will reach a different conclusion". Further, as the Appeal Panel stated in Mania at [39], cl 8 of Sch 4 does not permit "other orders to be made that are not properly seen as a means of enforcing or ensuring compliance with the original orders".
15. There appears to be very real, possibly insuperable, difficulties in commencing renewal proceedings in relation to orders made under s 188 of the SSMA. It may be that a party who considers that such orders have not been complied with "must look to other means of enforcement provided in the NCAT Act or the relevant enabling legislation": Mania at [38].
16. For those reasons, the Tribunal will dismiss the application.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 October 2023