Athens v The Owners-Strata Plan No 47035

Allsopp v The Owners-Strata Plan No 6006 [2022] NSWCATAP 365

Athens v The Owners - Strata Plan No. 47035 [2021] NSWCATCD 42

Azzopardi v Tasman QEB (1985) 4 NSWLR 139

Bilanenko v Commissioner of Police [2022] NSWCATAP 279

Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734

Boreland v Brewis [2024] NSWCATAP 140

Butto v NSW Land and Housing Corporation [2025] NSWCATAP 111

Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33; [1991] HCA 23 a

CLD v Children's Guardian [2017] NSWSC 936

Collins v Urban [2014] NSWCATAP 17

Conomos v Di Rico [2016] NSWCATAP 5 a

Croll v Form and Colour Pty Ltd [2023] NSWCATAP 204

Danis v Commissioner for Police [2021] NSWCATAP 57

Donohoe v Albulario [2025] NSWSC 9

Foo v Frew [2023] NSWCATAP 303

FZK v Secretary, Department of Communities and Justice (No 4) [2025] NSWCATAP 278

GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15

House v The King (1936) 55 CLR 499 [1936] HCA 40

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99

Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1

Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32

Lehrmann v Network Ten Pty Limited (Cross Examination) [2023] FCA 1477

LK Law Pty Ltd v Karas (Cross Examination) [2024] FCA 265

Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266

Maple v The Owners - Strata Plan No. 8950 [2021] NSWCATCD

McNeill v Clarence Valley Council [2025] NSWCATAP 184

O'Brien v Womens Housing Company Limited [2026] NSWCATAP 3

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

Ros Commissioner of Police [2020] NSWCATAP 70

Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39

Secretary, NSW Department of Communities and Justice v James [2023] NSWCATAP 64

Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416

The Owners - Strata Plan No 47035 v Athens [2025] NSWSC 1588

The Owners - Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273

The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256

TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178

Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204

Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25

Wells Group Pty Ltd v Betts [2025] NSWCATAP 70

Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123

Yuen v Thom [2016] NSWCATAP 243

Zurich Australia Insurance Limited v Motor Accidents Authority of NSW & Ors [2010] NSWSC 21

1. This is an internal appeal under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) from a decision of the Tribunal dated 28 March 2025 to dismiss an application by a lot owner in a strata scheme to appoint a compulsory strata manager on a limited basis under s 237 of the Strata Schemes Management Act 2015 (NSW) (SSM Act).
2. In this decision, any reference to "the lot owner" is a reference to the appellant, and any reference to "the owners corporation" is a reference to the respondent.
3. There is a lengthy history of disputation and litigation between the parties. Separate to this appeal, there are current proceedings involving the parties (The Owners - Strata Plan No 47035 v Athens [2025] NSWSC 1588). Those proceedings involve an application by the owners corporation for payment of allegedly unpaid levies; and an application by the lot owner for damages due to alleged nuisance and failure to comply with the owners corporation's duty to keep and maintain common property in a state of good repair. Those proceedings have been transferred from the Supreme Court to the Tribunal.
4. The lot owner owns lot 42 of the strata scheme, which is located on the top floor of the strata building. For many years, there has been disputation about water ingress into lot 42, and whether the owners corporation has complied with its duty to keep and maintain common property in a state of good repair under s 106(1) of the SSM Act.
5. The lot owner alleges that he has been unable to reside in the lot since about 2011 due to the water ingress issue and the inadequate state of repair. The owners corporation alleges that delays in repairs was caused or contributed to by the lot owner refusing reasonable access, and disputation involving the appropriate scope of works. Certain works have been performed, and there is ongoing disputation as to whether those works are adequate to comply with the owners corporation's duty under s 106(1) of the SSM Act.
6. On 25 June 2021, the Tribunal (McDonald SM) made consent work orders and otherwise dismissed the lot owner's application for compulsory appointment of a strata manager in Athens v The Owners - Strata Plan No. 47035 [2021] NSWCATCD 42.
7. The consent work order made on 25 June 2021 involved the installation of a canopy and screen and the performance of certain works set out in the expert report of Mr Illievski dated 11 December 2020. The works were to be performed within 6 months of the date of the orders, or any such other date as mutually agreed by the parties. The consent orders also contained reference to the lot owner providing access to the lot, on 72 hours written notice by email addressed to the lot owner's Solicitor.
8. In subsequent Tribunal proceedings, consent orders were made on 10 March 2023 that Mr Kioussis, a licensed strata managing agent of Result Property Group, be appointed as a compulsory strata managing agent on a limited basis under s 237 of the SSM Act. The powers which Mr Kioussis exercised involved the performance of the work order made by the Tribunal on 25 June 2021. There was a monetary limit of $500,000 for the works. The period of limited compulsory appointment was 9 months.
9. On 16 January 2024, the lot owner filed further Tribunal proceedings, which the lot owner described as a "renewal" of the proceedings in which McDonald SM made the consent work orders. Relevantly, the lot owner sought Mr Kioussis be reappointed as a compulsory strata manager for a period of a further 9 months, or until the issue of an occupation certificate, whichever was the earlier. The lot owner alleged the work orders of 25 June 2021 had not been complied with.
10. During the course of the Tribunal proceedings, the lot owner amended the orders sought. The orders sought were that Ms Habib, licensed strata manager of Premium Strata Pty Ltd, be appointed as a compulsory strata manager on a limited basis under s 237(1)(b) of the SSM Act to perform the works identified in the consent orders of 25 June 2021, and "works as set out in the report of Patridge Consulting ("Scope of Works") dated 18 July 2023 as well as the Amended Summary Report by Partridge Consulting ("Tender Summary") dated 3 October 2023".
11. The period of appointment sought by the lot owner was 9 months or until the issue of an occupation certificate, whichever was the earlier. The monetary limit of authorisation for the performance of the works was $1,250,000.
12. For most of the Tribunal proceedings, the lot owner was legally represented, but that legal representation ceased a short period of time prior to the Tribunal hearing.
13. The hearing was listed on 11 September 2024. The lot owner appeared self-represented. The owners corporation was legally represented.
14. At the conclusion of the hearing, the Tribunal reserved its decision. However, the Tribunal made procedural directions allowing the owners corporation to file and serve any evidence regarding the extent to which the owners corporation had performed the work identified in the consent work orders of 25 June 2021, and the for the parties to file and serve further written submissions. The owners corporation was to file and serve its evidence by 27 September 2024; and the parties were to provide written submissions by 14 October 2024.
15. The orders and reasons of the Tribunal on 11 September 2024 are as follows:

"1. The decision is reserved.

2. The respondent has until 27 September 2024 to file in the Tribunal and give to the applicant any evidence it relies on regarding the extent to which it has carried out and completed the work referred to in Order 1 of the Tribunal's judgement given on 25 June 2021 in Athens v The Owners-Strata Plan No 47035.

3. Not later than 14 October 2024 each party has the right to file written submissions in the Tribunal regarding the evidence referred to in order 2.

Reasons for decision:

In these proceedings, orders were made on 29 February 2024 that the applicant was to file and serve his evidence by 28th of March and the respondent was to file and service (sic) its evidence by 26th of April 2024. These orders were amended on 16 May 2024, when the time for the applicant to file his evidence was extended to 12 June 2024. The time for the respondent to file and serve its evidence was extended to 10 July 2024.

The applicant was months late in filing his evidence, which was filed on either the 9th of September or the morning of the hearing. As a result of the applicant's failure to comply with Tribunal orders the respondent was placed in a difficult situation whereby it was able to file only a small bundle of documents which was admitted into evidence as Exhibit 1, but was not able to file a full set of the documents it would have been able to do so, had it been provided a reasonable period of time, as provided by the orders of the Tribunal.

During the hearing on 11 September 2024, it became clear that evidence was needed to ascertain the extent to which the respondent had complied with the orders made by the Tribunal on 25 June 2021.

As a result, the orders above have been made to allow the respondent to file all of the documents that it considers to be necessary and for the parties thereafter to have the opportunity to file submissions on those documents in the Tribunal."

1. On 28 March 2025, the Tribunal published its decision.

1. The Tribunal identified at [2] the evidence and documents tendered on 11 September 2024. At [3] it set out its orders and reasons of 11 September 2024.
2. At [4] the Tribunal stated that the respondent has filed a witness statement and attached documents of Ms M Tasker "in compliance with order 2 above" and that both parties had filed submissions "in accordance with order 3 above". Ms Tasker is the current strata manager of the owners corporation.
3. At [7]-[9] and [12]-[14] the Tribunal set out the lot owner's evidence and submissions. The Tribunal referred to the lot owner's evidence being of a "historical and general nature" with "general disparaging comments made about the respondent's past strata managing agents and strata committee members." The Tribunal stated that the lot owner was "unable to be specific about the ways in which the respondent was not functioning or not functioning satisfactorily so that s 237(3)(a) of the SSMA was enlivened".
4. The Tribunal stated that the "only coherent way" to understand the lot owner's application was that the orders of 25 June 2021 had not been complied with, but that much of the evidence referred to "historical matters" that predated the orders of 25 June 2021.
5. At [10]-[11] and [15]-[17] the Tribunal set out the submissions and evidence of the owners corporation. The position of the owners corporation was that the only work not yet performed pursuant to the consent orders of 25 June 2021 was the installation of the canopy and screen referred to in the report of Windtech Consultants. The statement of Ms Tasker set out the measures taken by Mr Kioussis and the former strata managing agent, Netstrata Pty Ltd, to perform the works.
6. The statement of Ms Tasker (16 September 2024) stated that at the General Meeting of the owners corporation on 15 January 2024 the owners corporation (a) appointed Jamesons Strata Management for a period of 24 months, replacing the previous strata manager; (b) terminated the services of previous Solicitors; and (c) appointed new Solicitors.
7. Ms Tasker stated that the only work yet to complete pursuant to the consent work orders was the installation of the canopy and screen. She stated that the work was proceeding and the owners corporation had obtained drawings from a registered designer under the Design and Building Practitioners Act 2020 (NSW) (DBP Act); obtained a quotation from a builder; prepared a development application which was to be filed with the local Council; and arranged a meeting with the Council to discuss the draft development application.
8. At [18]-[25] the Tribunal made findings. The Tribunal found at [18] the lot owner had not discharged the onus of proof to persuade the Tribunal that there should be a further appointment of a compulsory strata manager on a limited basis. At [21] the Tribunal referred to the lot owner's evidence failing to clearly establish what work had, and had not, been performed pursuant to the consent orders of 25 June 2021. The Tribunal accepted the evidence of Ms Tasker, and found at [22] that the work pursuant to the consent work order of 25 June 2021 had been performed other than the installation of the canopy and screen. At [23] the Tribunal found that the work involving installation of the canopy and screen was "well in hand".
9. At [23], the Tribunal relevantly found as follows:

"...The making of an order under s 237 of the SSMA is a matter of discretion. I find that there is no evidence that has been filed that would persuade me that the strata manager mentioned in the applicant's application for orders would be in any way better placed to ensure that the work referred to in order 1(a) would be carried out quicker or on more advantageous terms that if the present strata manager were to arrange for completion of that work. It follows that the application must be dismissed."

1. At [24], the Tribunal noted that the lot owner's written submissions made pursuant to the orders of 11 September 2024 "went further" than referring to whether the owners corporation had completed the work pursuant to the consent orders of 25 June 2025, including a "suggestion" that there be the issue of an occupation certificate. The Tribunal did not place any weight upon the lot owner's submissions which "went beyond" the orders of 11 September 2024.
2. At [26]-[29] the Tribunal made procedural directions for the disposition of any costs application. We are unaware what, if any, costs order has been made as neither party referred to that issue in their appeal documents and submissions.

1. The lot owner filed a Notice of Appeal on 4 June 2025.
2. The Notice of Appeal acknowledges that the lot owner received the decision of the Tribunal on 28 March 2025.
3. Under r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), a party to Tribunal proceedings has 28 days from the date of the decision, or the date the decision is received (whichever is later) to file an internal appeal under s 80 of the NCAT Act. That time period can be extended under s 41 of the NCAT Act.
4. The lot owner had until 25 April 2025 to file the appeal. The appeal is 40 days out of time.
5. In the Notice of Appeal, the lot owner identifies the reason for the delay as medical treatment due to cancer. The lot owner states that he underwent radiation treatment in the period between 31 March 2025 and 16 May 2025, and he was "medically unfit" due to his recover from the treatment for a further period of time.
6. The lot owner did not provide any medical evidence in his appeal documents. However, the submissions of the owners corporation did not dispute that the lot owner suffered from a serious medical condition.

1. The grounds of appeal contained in the Notice of Appeal identify that the lot owner seeks to appeal from purported factual errors of the Tribunal. The grounds identify matters that require leave to appeal.
2. The grounds of appeal (at [2](l)) assert that as of 9 September 2024 "no actual works had physically commenced" as of 9 September 2024, and as of the date of the appeal no works had been performed. The grounds of appeal assert (at [2]-(e)-(f)) that Mr Kioussis had obtained a tender report from Partridge Consulting on 9 October 2023, but the "funding available was not sufficient". The lot owner asserts that the works were delayed because of the actions of the former strata manager and the executive committee of the owners corporation, as well as building industry supply issues.
3. The grounds of appeal at [2] set out the "incontestable" history of the dispute, which at [3] the lot owner asserts was not taken into account by the Tribunal.
4. At [4], the lot owner asserts the decision was against the weight of evidence.
5. It is asserted that the Tribunal had relied on the evidence of Ms Tasker without "proper basis" (which was only admitted via statement and without cross examination) and the Tribunal did not properly take into account or gave in appropriate weight to the following matters:

(a) The lot owners evidence in his statement that Ms Tasker had never attended lot 42 for an inspection prior to the Tribunal hearing.

(b) The "sole basis" of the evidence of works being performed was hearsay based on persons who may have attended the lot and past records of Netstrata.

(c) The Member had "no significant evidence" (that weight could be placed upon) to make a finding that the owners corporation was progressing the works.

(d) The Member did not consider the delays "for over 12 months leading up to the hearing" that were not the responsibility of the lot owner or Mr Kioussis.

(e) The Member erred in making a finding that the previous history was not relevant, and ignored a "vast sea of evidence" that the owners corporation was not progressing the works.

(f) The Member erred by giving no weight to the Patridge Consulting report (and scope of works) dated 9 October 2023 and the owners corporation refusing to consent to an extension of the time period for Mr Kioussis's appointment and an increase in the monetary limit of the works.

1. The lot owner seeks leave to admit "fresh evidence" about the past and continuing delays in completing the works. The Notice of Appeal does not identify with precision what fresh evidence is sought to be adduced, but refers generally to the issue of delay and the role of the owners corporation and strata managers in causing the delay in completing the works. The lot owner also seeks a view by the Tribunal to inspect the lot.

1. The owners corporation filed a Reply to Appeal dated 24 June 2025.

1. The Appeal Panel made procedural directions for the preparation of the appeal on 13 June 2025 and 22 July 2025 (amended under s 63 of the NCAT Act on 23 July 2025). Relevantly, the lot owner was to file and serve documents and submissions in the appeal by 28 July 2025; the owners corporation was to file and serve documents and submissions in the appeal by 1 September 2025; and the lot owner was to file and serve submissions in reply by 15 September 2025.
2. The lot owner filed a bundle of unpaginated documents on 28 July 2025. He then filed a further bundle of documents on 15 September 2025 which he asserted were in "reply".

Lot Owner's Documents and Submissions of 28 July 2025

1. The lot owners documents filed on 28 July 2025 include an 18-page document which includes a number of subjective emotive assertions about the conduct of the owners corporation; its strata managers; and the Solicitors who have represented it over the long duration of the dispute.
2. The lot owner's documents and submissions filed on 28 July 2025 contain a copy of the expert report of Mr Illievski dated 11 December 2020; the Scott Schedule of Mr Illievski; and the expert report of Mr Brincat (prepared for the lot owner) dated 11 March 2022 in Supreme Court proceedings.
3. The lot owner's documents contain the witness statement of Ms Tasker dated 16 September 2024 and the lot owner's "outline of submissions" dated 14 October 2024. As discussed previously, the owners corporation relied upon the statement of Ms Tasker at the Tribunal hearing. The lot owner's submissions make reference to issues upon which he disagrees with Ms Tasker.
4. It is appropriate to set out the evidence contained in the statement of Ms Tasker dated 16 September 2024, as the lot owner comments upon that evidence in is submissions.

1. Ms Tasker of Jamesons Strata Management is the strata manager of the owners corporation since February 2024.
2. Paragraphs [3]-[4] of the statement refer to the consent orders of 29 June 2021 and the measures taken by Mr Kioussis during the period of partial compulsory appointment. On 18 July 2023, a scope of works was obtained from Partridge Remedial; and on 6 September 2023 a tender summary was obtained. At [6] Ms Tasker asserts that the amount of the tenders exceeded the monetary limit in the consent orders of 29 June 2021; and at [10] Ms Tasker asserts that the scope of works and tenders obtained from Patridge Remedial included work beyond the scope of the consent orders of 29 June 2021.
3. According to Ms Tasker, the owners corporation obtained a quotation from a builder Maestro Group for waterproofing of the common property terrace (which was not one of the matters referred to in the consent orders of 29 June 2021) and a subsequent quotation from Maestro Group for works to the pump room. A general meeting of the owners corporation was scheduled for 25 September 2024 to approve the water proofing works to the terrace. Other issues remained in dispute by reason of some of the works identified by Partridge Remedial involved an area to which an exclusive use by-law applied; and another matter involved the removal and replacement of a "shed" on the roof, which the owners corporation asserted was a modification of common property that had not been authorised by the owners corporation.
4. Ms Tasker states that on 19 June 2024 there was an onsite lot inspection involving the applicant; the owners corporation's current Solicitor; the lot owner's Solicitor and Mr Reslan of Maestro Group Building & Development to discuss the dispute about repairs to common property.
5. After this meeting, on 12 July 2024, the owners corporation sought quotations for (a) waterproofing works to the balcony terraces (excluding the exclusive use area inside the "greenhouse" constructed by the lot owner) and (b) construction of the canopy.
6. According to Ms Tasker, she had reviewed the documentation from the previous strata manager. The works pursuant to item 6.3 in the Ilievski report had been performed in April 2023. The owners corporation issued a 'work order' for the pump room works to Maestro Group Building & Development on 19 August 2024.
7. Ms Tasker states at [20]-[22] that the only remaining outstanding works from the consent Tribunal work order dated 29 June 2021 are involve the construction of the canopy. The owners corporation had obtained a design from a registered design practitioner under the DBP Act; obtained a quotation from Maestro Group Building & Development and prepared a development application to the local Council. Works would commence when approved by the local Council, but the strata manager foreshadowed further potential disputes regarding access and the number of personal items stored on the common property roof by the lot owner. Ms Tasker states that a further special levy will need to be raised.

Owners Corporation's Submissions and Documents Filed on 29 August 2025

1. The owners corporation filed submissions and documents on 29 August 2025.
2. The written submissions are prepared by the owners corporation's Counsel and are dated 28 August 2025.
3. In addition to the statement of Ms Tasker dated 16 September 2025 that was in evidence before the Tribunal, the owners corporation seeks leave to rely upon a further witness statement of Ms Tasker dated 28 August 2025.

Ms Tasker's Witness Statement of 28 August 2025

1. At [5] Ms Tasker states that the "status of the work at the time of the hearing" is set out at [18]-[20] of her statement of 16 September 2025 and her statement sets out the "further progress" of the works since 16 September 2025. The position of the owners corporation remains that all of the work pursuant to the consent orders of 25 June 2021 has been performed, other than the installation of the canopy.
2. Paragraphs [4]-[13] refer to the procedural history of the Tribunal proceedings the subject of the appeal.
3. Paragraphs [22]-[25] set out events since the decision of the Tribunal. They are summarised as follows:
4. On 10 April 2025, a meeting of the owners corporation approved the lodging of a development application with the local council in respect of the canopy works.
5. On 1 May 2025, the lot owner lodged a complaint with the local council about previous works performed by the owners corporation. A copy of an email exchange between the owners corporation and the local Council is attached. The complaint involved the waterproofing works to the pump room, which the lot owner asserted were inadequate and non-compliant with the "consulting engineer's specifications outlined in the scope of works dated 18 July 2023". The lot owner alleged contaminated water was entering lot 42. The local Council referred to the complaint being "substantiated by a site inspection." The local council sought a response from the owners corporation, and "strongly advised" the owners corporation to take measures by 19 May 2025 that included expert reassessment of the works.
6. The owners corporation responded to the Council's email and set out what measures it had taken in respect of the pump room. The owners corporation referred to the long history of disputation and litigation. The owners corporation also complained that the lot owner "makes claims and refuses to grant access" to strata committee members to inspect the lot.
7. The local Council responded by email on 16 May 2025. The local Council refused to make an order to compel access. The correspondence referred to the owners corporation taking a "proactive approach to building management and public health concerns" but that the compliant related to the waterproofing work not complying the "engineering standard specified." The email of the local Council does not identify what further measures, if any, the local Council proposed to take.
8. Ms Tasker states that the owners corporation sought quotations for waterproofing works to be undertaken on the roof terrace, because the owners corporation had been advised by the engineers who had planned the work that they needed to be performed as the same time, or before, the construction of the canopy.
9. In June 2025, the owners corporation obtained fee proposals from two remedial engineering firms (Sydney Remedial Engineers and Hydromedial) for the waterproofing of the roof terrace.
10. A Development Application was prepared and lodged with the local Council. On 30 July 2025, the local Council informed the design practitioner under the DBP Act engaged by the owners corporation that the Development Application required the signed consent of the lot owner (as the proposed structure would be used as weather protection for the lot) and a current Survey Plan.
11. Ms Tasker states that the Solicitor for the owners corporation emailed the lot owner seeking (a) access for a surveyor to inspect the lot to confirm that no changes are required to the existing survey; and (b) the lot owner provide signed consent to the Development Application. According to Ms Tasker (with an email from the lot owner provided) the lot owner has refused to sign the Development Application.
12. The final part of Ms Tasker's statement refers to the Supreme Court proceedings between the parties.

Lot Owner's 'Reply' Documents and Submissions Filed on 15 September 2025

1. The lot owner filed a further bundle of documents on 15 September 2025. Those documents are not limited to submissions in reply.
2. Other than a document entitled "the appellant's submissions" signed by the appellant on 14 September 2025, the documents in the bundle are not paginated.
3. The submissions are 13 pages in length, and refer to a mixture of factual events and legal arguments. The submissions attach documents from Windtech Consultants dated 15 July 2022 and 10 October 2016. The submissions also attach an email from the owners corporation's Solicitor to the lot owner dated 18 August 2025.
4. Paragraph [1] of the submissions refer to the lot owner having cancer treatment, which affected his ability to understand what was occurring at the Tribunal hearing and put forward all of his evidence and arguments. The appellant refers to this condition as the explanation for the delay in filing the appeal. The appellant asserts that he seeks the Tribunal take a view of the lot and hear his evidence "on site" whilst inspecting the lot. At [2] the lot owner refers to the previous strata manager employed by Netstrata.
5. The submission contains 30 paragraphs (pp 3-11) that are purported to be in reply to the owners corporation's submissions, although they repeat a number of matters referred to by the lot owner in his appeal submissions in chief.
6. The submission states that the owners corporation has deliberately engaged in delay and inaction. The submission makes extensive allegations of "fraud and corruption" against the strata committee; the strata managers (other than Mr Kioussis); the current Solicitor for the owners corporation and contractors engaged by the owners corporation. The emotive language is not supported by any evidence of fraud and corruption, beyond the lot owner's subjective beliefs.
7. The lot owner denies that he has refused to give the owners corporation reasonable access to the lot. He asserts that this an "excuse" by the owners corporation to justify its inaction.
8. In respect of the Partridge Consulting report and tender documents, the lot owner submits that Mr Kioussis obtained this evidence to rectify all of the water ingress issues in the lot and the only reason the works were not undertaken was due to the cost exceeding the limit under the consent orders. The lot owner asserts that the current strata Ms Tasker is using the Patridge Consulting report as a "guide" to repairs, but is not advancing the repairs and a compulsory strata manager should be appointed to ensure the works are performed.
9. At [31]-[42] the lot owner makes "general comments". The lot owner asserts that the Tribunal has failed to consider the owners corporation's breach of its duty to keep and maintain common property in a reasonable state of repair under s 106(1) of the SSM Act. Submissions are made about the damages the lot owner should be awarded. Those submissions are beyond the remit of this appeal, and it is unnecessary to repeat them. The submissions refer to the report of Windtech Consultants Pty Ltd and the report of Patridge Consulting.
10. The bundle of documents contained in the folder filed on 15 September 2025 include parts of the Patridge Consulting report dated July 2023; and a plethora of other documents, that include correspondence between the lot owner and the owners corporation's Solicitor in 2025 pertaining to the signing of the Development Application for the canopy. The lot owner in that correspondence asserts that he will not sign a "blank" document and believes the owners corporation will depart from the design and scope of works of Windtech Consultants.

1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80 (2) of the NCAT Act.
2. An appeal is not simply an opportunity for a dissatisfied or aggrieved party to re-argue the case they put at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
3. What is an error on a question of law was extensively discussed by the Appeal Panel in Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. An error on a question of law (if established) is an appeal made as of right and does not require leave. A mixed error of fact and law (if established) requires leave to appeal.
4. In Cusumano at [33], the Appeal Panel stated the categories of questions of law are "not closed"; and at [37] stated:

"[33] What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51."

1. It is unnecessary for the purpose of this decision to set out all the examples of an error on a question of law that were discussed in Cusumano.
2. However, an error on a question of law may arise in the circumstances including the following:

(1) Failure to provide procedural fairness at the hearing (Donohoe v Alburario [2025] NSWSC 9 at [36]- [39] Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [60]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [41] (Gleeson CJ), [142] (Kirby J) and [170] (Hayne J));

(2) No jurisdictional power to make an order (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57; at [163] (Hayne J));

(3) A constructive failure to exercise jurisdiction, in the sense of a failure to consider a substantial, clearly articulated argument relying upon established facts" that was within the jurisdiction of the Tribunal to determine (see e.g. Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]- [12] and [413]; Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [1] and [9]).

(4) Applying the wrong legal principle (in isolation to the factual findings) which materially affected the outcome (Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [38]- [53] (Bimson)). However, the wrong application of the correct legal principles to the facts is an error of mixed fact and law for which leave to appeal is required under s 80(2)(b) of the NCAT Act (TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178 at [42]- [43] and the authorities cited therein).

(5) Making a factual finding where there was no evidence at all to substantiate the factual finding: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91] per Hayne, Heydon, Crennan and Kiefel JJ. However, a wrong finding of fact does not amount to an error of law: Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25 per Brennan J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at [83]-[89]. An erroneous finding of fact, including the drawing of an inference or the erroneous failure to find a fact or failure to draw an inference, which is perverse in the sense that it is contrary to the overwhelming weight of the evidence, is not an error of law: Azzopardi v Tasman QEB (1985) 4 NSWLR 139 at 155 per Glass JA.

1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in Cl. 12(1)(a)-(c) of Sch. 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

(a) The decision of the Tribunal under appeal was not fair and equitable; or

(b) The decision of the Tribunal under appeal was against the weight of evidence; or

(c) Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of Cl. 12(1) of Sch. 4 may have been suffered where:

"[76]... there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."

1. Even if the appellant establishes that it may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains discretion whether to grant leave under s 80(2) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong (BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19]; Pholi v Wearne [2014] NSWCATAP 78 at [32]).
2. The discretion to grant leave to appeal was discussed by the Appeal Panel in Collins v Urban at [82]-[84]. It is usually appropriate to grant leave only in those matters that involve issues of principle; questions of general public importance; an injustice which is reasonably clear, in the sense of going beyond what is merely arguable; or the Tribunal has gone about the fact finding process in such an unorthodox manner, or in such a way that it was likely to produce an unfair result, it would be in the interests of justice for it to be reviewed.

Evidence Not Before the Tribunal-Should Leave Be Granted for Fresh Evidence?

1. Both parties have adduced new evidence in the appeal that was not before the Tribunal.
2. As cl 4 and 5 of NCAT Guideline 1-Internal Appeals states:

"4. Generally, an appeal is not an opportunity to have a "second go" at a hearing.

5. Parties to an appeal are not usually allowed to rely on evidence that was not given to the Tribunal at the original hearing."

1. An appeal hearing under s 80(1) of the NCAT Act is a rehearing concerned with identifying error in the decision under appeal (including the conduct of the hearing) and is not a de novo hearing. Except when an Appeal Panel conducts a new hearing under s 80(3) of the NCAT Act, the rehearing under s 80(1) of the NCAT Act is on the materials before the Tribunal at first instance to determine whether the decision under appeal is the result of some legal, factual or discretionary error (McNeill v Clarence Valley Council [2025] NSWCATAP 184 at [29]- [31]).
2. A new hearing can be held if the Appeal Panel determines that the grounds of appeal warrant it: s 80(3)(a) of the NCAT Act.
3. If the appeal hearing is conducted under s 80(1) of the NCAT Act, there is a discretion to admit fresh evidence if it is in the interests of justice to do so. The Appeal Panel stated in Ros Commissioner of Police [2020] NSWCATAP 70 at [32]- [33]:

"[32] There was a discussion of the issues dealing with the nature of internal appeals relevant to the receipt of further evidence in Yuen v Thom [2016] NSWCATAP 243 at [14]- [22]. Receiving further evidence on an appeal was further discussed in Lettau v Artwork Transport Pty Ltd [2017] NSWCATAP 14 affirming Yuen v Thom. We adopt the analysis in these cases. As such, having regard to the guiding principles under s 36 of the NCAT Act, the appeal in this case (which is not by way of a new hearing) is one akin to a rehearing, with the ability to receive further evidence if appropriate.

[33] There are a number of other authorities which set out the principles on which the Appeal Panel might consider an application for admission of further evidence. Generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal's decision at first instance and have been evidence which was relevant at the time to that decision (BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]- [28]). Whether it is likely the further evidence would have produced a different result at the Tribunal is relevant: BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]- [28]; Mielczarek v Commissioner of Fair Trading [2016] NSWCATAP 217; Building Professionals Board v Hans [2008] NSWADTAP 13. Any potential prejudice to the other party upon the receipt of further evidence is also relevant: Lettau v Artwork Transport Pty Ltd at [25]. Whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion, may also be relevant: ZNX v ZNY [2020] NSWCATAP 41 at [25]."

1. We are not satisfied that any of the grounds of appeal warrant a new hearing under s 80(3) of the NCAT Act. Accordingly, the appeal hearing is conducted under s 80(1) of the NCAT Act.
2. The new evidence in the appeal deals with events after the appeal. None of that evidence assists us to determine whether leave to appeal should be granted. That evidence is unnecessary to properly consider the grounds of appeal: Yuen v Thom [2016] NSWCATAP 243 at [17]- [22]. Further, the evidence does not assist us to determine whether an injustice has or will result from the exercise of the Tribunal's discretion not to appoint a compulsory strata manager on the limited basis sought by the lot owner.
3. Neither party is granted leave to rely upon new evidence in the appeal that deals with events after the Tribunal decision, other than to the extent it is necessary to determine whether leave to appeal should be granted in respect of whether the evidence is significant new evidence not reasonably available at the date of the hearing (cl 12(1)(c) of sch 4 of the NCAT Act). We will return to that issue later in the decision.

Compulsory Appointment of a Strata Manager-Applicable Principles

237 Orders for appointment of strata managing agent

(1) Order appointing or requiring the appointment of strata managing agent to exercise functions of owners corporation The Tribunal may, on its own motion or on application, make an order appointing a person as a strata managing agent or requiring an owners corporation to appoint a person as a strata managing agent -

(a) to exercise all the functions of an owners corporation, or

(b) to exercise specified functions of an owners corporation, or

(c) to exercise all the functions other than specified functions of an owners corporation.

(2) Order may confer other functions on strata managing agent The Tribunal may also, when making an order under this section, order that the strata managing agent is to have and may exercise -

(a) all the functions of the chairperson, secretary, treasurer or strata committee of the owners corporation, or

(b) specified functions of the chairperson, secretary, treasurer or strata committee of the owners corporation, or

(c) all the functions of the chairperson, secretary, treasurer or strata committee of the owners corporation other than specified functions.

(3) Circumstances in which order may be made The Tribunal may make an order only if satisfied that -

(a) the management of a strata scheme the subject of an application for an order under this Act or an appeal to the Tribunal is not functioning or is not functioning satisfactorily, or

(b) an owners corporation has failed to comply with a requirement imposed on the owners corporation by an order made under this Act, or

(c) an owners corporation has failed to perform one or more of its duties, or

(d) an owners corporation owes a judgment debt.

(4) Qualifications of person appointed A person appointed as a strata managing agent as a consequence of an order made by the Tribunal must -

(a) hold a strata managing agent's licence issued under the Property and Stock Agents Act 2002, and

(b) have consented in writing to the appointment, which consent, in the case of a strata managing agent that is a corporation, may be given by the secretary or another officer of the corporation or another person authorised by the corporation to do so.

(5) Terms and conditions of appointment A strata managing agent may be appointed as a consequence of an order under this section on the terms and conditions (including terms and conditions relating to remuneration by the owners corporation and the duration of appointment) specified in the order making or directing the appointment.

(6) Return of documents and other records A strata managing agent appointed as a consequence of an order under this section must cause a general meeting of the owners corporation to be held not later than 14 days before the end of the agent's appointment and must on or before that meeting make arrangements to return to the owners corporation all documents and other records of the owners corporation held by the agent.

(7) Revocation of certain appointments An order may be revoked or varied on application and, unless sooner revoked, ceases to have effect at the expiration of the period after its making (not exceeding 2 years) that is specified in the order.

(8) Persons who may make an application The following persons may make an application under this section -

(a) a person who obtained an order under this Act that imposed a duty on the owners corporation or on the strata committee or an officer of the owners corporation and that has not been complied with,

(b) a person having an estate or interest in a lot in the strata scheme concerned or, in the case of a leasehold strata scheme, in a lease of a lot in the scheme,

(c) the authority having the benefit of a positive covenant that imposes a duty on the owners corporation,

(d) a judgment creditor to whom the owners corporation owes a judgment debt,

(e) the Secretary.

1. The principles for whether a compulsory appointment order should be made are well established. In summary:

(1) The applicant must have standing to bring the application under s 237(8).

(2) The applicant must establish one or more of the matters under s 237(3).

(3) If one of the matters under s 237(3) is established, the Tribunal has a discretion whether to appoint a compulsory strata manager (to exercise all functions of the owners corporation; or to exercise specific functions). The applicant bears the onus of persuading the Tribunal that the discretion should be exercised for compulsory appointment, such that it is appropriate in all the circumstances to depart from the statutory provisions of the SSM Act that provide for strata schemes to be managed by a strata committee and a strata manager appointed by the owners corporation at a general meeting.

(4) There must be evidence that a proposed compulsory strata manager is suitably licensed and consents to compulsory appointment (s 237(4)).

(5) It is relevant to the exercise of discretion whether the Tribunal has evidence of the terms and conditions of the proposed compulsory strata manager (s 237(4)).

(6) There is a temporal limit to the period for compulsory appointment (s 237(7)).

(7) Discretionary considerations include whether there have been any adverse licensing findings by NSW Fair Trading against the proposed compulsory strata manager.

1. Matters for consideration when exercising discretion whether to appoint a compulsory strata manager were discussed by the Appeal Panel in Foo v Frew [2023] NSWCATAP 303 (Frew) at [21]-[27] as follows:

"[21] SSMA s 237 gives, by the word "may", a discretion to the Tribunal which needs to be exercised on principled grounds.

[22] The appointment of a compulsory strata manager under SSMA s 237, like the removal of a strata scheme officer under s 238, is not lightly made and requires some dereliction of duty or dysfunction in operation of the scheme, usually not arising from an isolated incidence unless it showed serious misconduct or dereliction of duty (including disobedience to Tribunal or Court orders): see, eg, Kahn v Owners Corporation SP 2010 [2017] NSWCATCD 39 ('Kahn') at [30]; The Owners-Strata Plan No 14593 v Soares [2019] NSWCATAP 35 ('Soares') at [44], [46]; Anderson v Owners SP 61034 [2019] NSWCATAP 61 at [41]- [42].

[23] The aim of SSMA s 237 and its predecessors in the 1996 Act is, where possible, to maintain a democratic system which the legislative scheme has established, rather than substitute a compulsory appointment: Kahn at [30]. It is not enough that the owners simply do not get along: Bischoff v Rita Sahade [2015] NSWCATAP 135. The evidence may show a properly functioning strata scheme in all practical respects despite any personal animosities or disagreements on the decisions made: Robinson v Owners SP 61717 [2018] NSWCATCD 49 at [53]- [58]; Anderson v Owners SP 61034 [2019] NSWCATAP 61 at [41]- [42].

[24] However, if dispute becomes chronic, complex and/or litigious the trigger point may well have been reached: Moallem v CTTT [2013] NSWSC 1700 at [7]; Bate v Owners SP 60549 [2018] NSWCATCD 36 at [77]- [78]. This may also be the case where there is a clear and substantial dereliction in the duty to manage the scheme in accordance with statutory requirements and in the interests of all lot owners under SSMA s 9(2) and its statutory predecessors, without discrimination: Gershberg v Owners SP 5768 [2011] NSWCTTT 411; Soares at [44], [46].

[25] Failure to engage or reasonably to act in accord with relevant expertise and advice, including the strata manager for voluntary members of a strata committee, may be a sufficient indicium: Co Funds Management PL v Owners SP 78945 [2011] NSWCTTT 488 at [27]- [28].

[26] There may be a need for intervention to provide a "clean slate", to re-establish proper functioning, and to facilitate non-repetition of dysfunctional conduct or non-compliance with statutory requirements, which may require the maximum appointment period of two years: Kotevski v Seadon and Owners SP 82413 [2013] NSWCTTT 597 at [74]. This may require continuation on a serial basis if the complexity of the mix of uses in the scheme, the size of the scheme or other ongoing management issues are present: Foong v Scutella [2021] NSWCATAP 225.

[27] If a compulsory strata manager is appointed, it should be someone who, in addition to giving the statutory consents, will provide the necessary impartial management at least cost: Farland v Simmons [2018] NSWCATCD 28 at [45]."

1. A further discretionary matter for consideration is evidence of improved performance. The Tribunal stated in Maple v The Owners - Strata Plan No. 8950 [2021] NSWCATCD 108 at [21]- [22]:

"[21] Further, a relevant matter is whether, despite past inadequacies of the management of the owners corporation that involve failure to comply with obligations under the SSMA and/or the Strata Schemes Regulation 2015 (NSW) there has been a recent change in behaviour involving compliance, such as the recent election of a new strata committee that has adopted an approach that accords with ensuring the owners corporation complies with its obligations; and whether any previous "dysfunctionality" has improved.

[22] The applicant bears the onus of establishing that a compulsory strata manager should be appointed. The Tribunal focusses upon the objective evidence. It is axiomatic that a Lot owner who is making an application for compulsory appointment of a strata manager is subjectively dissatisfied with the current management of the owners corporation. However the matters set out in s 237 (3) of the SSMA and the discretionary considerations as to whether a compulsory strata manager should be appointed are not established merely because of the subjective belief of a Lot owner that management of the owners corporation is, or has been, inadequate."

1. To the extent that the appellant asserts the exercise of discretion involves error, the appellant must show a type of error pursuant to the principles in House v The King (1936) 55 CLR 499 [1936] HCA 40; at 504-505 (Frew at [28]). Those principles are as follows:

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed ... It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."

1. The appellant's grounds of appeal are grounds that involve leave to appeal, rather than identifying an error on a question of law.

1. The appellant submits the decision was not fair and equitable.
2. The appellant's submissions focus upon the history of disputation; the purported failure to adequately repair; and the Tribunal's focus upon whether or not the orders of 25 June 2021 were complied with rather than whether the works Partridge Consulting report and tender documents had been performed.
3. There is no doubt that temporal aspect of the consent orders of 25 June 2021 had not been complied with. However, the Tribunal took that into account in the exercise of its discretion.
4. It was not unreasonable or inappropriate for the Tribunal to focus upon whether the works identified in the consent orders of 25 June 2021 were complied with, It was the compliance with those orders, rather than more extensive (and disputed) repairs to common property that Mr Kioussis was appointed as compulsory strata manager to achieve. Accordingly, it was central to the issue of whether there should be a further periods of compulsory appointment to ascertain whether the orders had been complied with and whether it was appropriate to engage a compulsory strata manager for a further period of limited appointment to achieve compliance with the orders.
5. The dispute as to whether the scope of works in the consent orders of 25 June 2021 had been performed was a question of fact. The findings of the Tribunal were not obviously illogical, irrational or unreasonable and were open to it in the context of the completing evidence of the lot owner and available to it on the basis of the information and documents contained in the evidence of Ms Tasker.
6. The lot owner submits that the Tribunal should have given no weight to the evidence of Ms Tasker because she was not the strata manager at the relevant time and had not personally inspected the lot. Whether or not the current strata manager personally inspected the lot is not determinative of the weight to be given to her evidence as to what measures the owners corporation had taken to comply with the consent orders of 25 June 2021. Her evidence was based upon the records of the owners corporation that set out the relevant factual events, including the measures taken by the owners corporation to comply with the consent orders of 25 June 2021.
7. The lot owner further submits that no weight should have been given to the evidence of Ms Tasker because she was not cross examined.
8. The Tribunal determined it appropriate to hear evidence (including the evidence of the appellant, which he had lodged and served late) on the first day of the hearing; and then give the respondent the opportunity to put forward evidence, and both parties then make written submissions without the matter again being listed for oral hearing. A more orthodox approach would have been to part-hear the matter after the first day of the hearing (if leave had been granted to the appellant to rely upon his late documentary evidence) and then list the matter for a further oral hearing after the owners corporation had lodged and served its documentary evidence.
9. The Tribunal's orders of 11 September 2024 make no reference to the need for a further hearing or the provisions of ss 50(2) and (3) of the NCAT Act. Section 50 of the NCAT Act states:

50 When hearings are required

(1) A hearing is required for proceedings in the Tribunal except -

(a) in proceedings for the granting of leave for an external or internal appeal, or

(b) in connection with the use of any resolution processes in proceedings, or

(c) if the Tribunal makes an order under this section dispensing with a hearing, or

(d) in such other circumstances as may be prescribed by the procedural rules.

(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first -

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken any such submissions into account.

(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

(5) This section does not prevent the Tribunal from holding a hearing even if it is not required.

1. In this matter, there was a hearing on 11 September 2024. There were directions about further evidence to be adduced by the respondent and the parties are given the opportunity to make written submissions. There was no order under s 50(2), nor was there a reference in the reasons for the directions to a further hearing.
2. The lot owner has not raised the operation of s 50 of the NCAT Act in the grounds of appeal or in submissions. Further, the lot owner has not provided a sound recording and transcript of the hearing on 11 September 2024 in his appeal materials. The procedural directions made at the appeal Call Over in these proceedings make clear that if a party is relying upon what occurred at the hearing as part of the appeal, a sound recording and transcript of the relevant parts must be provided to the Appeal Panel.
3. The failure to provide a sound recording and transcript of the hearing by the party who bears the onus of proving the decision (or conduct of the hearing) contained an error on a question of law, or otherwise that leave to appeal should be granted, is often fatal to the prospects of success of the appeal, unless the written reasons of Tribunal decision are sufficient to demonstrate the appeal grounds should succeed, or otherwise that new evidence (if allowed) is sufficient to demonstrate the appeal grounds should succeed in conjunction with analysis of the orders and written reasons (Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 at [28]- [33]; Aboss v Hafeez [2022] NSWCATAP 345 at [30]- [31]; Butto v NSW Land and Housing Corporation [2025] NSWCATAP 111 at [42]- [43]; Allsopp v The Owners-Strata Plan No 6006 [2022] NSWCATAP 365 at [34]- [35]; Bilanenko v Commissioner of Police [2022] NSWCATAP 279 at [14]- [25]).
4. As no sound recording and transcript has been provided, we cannot ascertain whether or not Tribunal Member raised with the parties on 11 September 2024 that the hearing would conclude without cross examination of any witness evidence adduced by the owners corporation and the parties had the opportunity to indicate whether they agreed or opposed this course of action. The only material before us on this are the reasons for the orders made on 11 September 2024 recorded in the decision at [3]. Those reasons explain why the respondent was given leave to file evidence about the work completed in respect of the orders made by the Tribunal on 25 June 2021 and both parties were given the opportunity to lodge written submissions regarding this evidence of the respondent. There is no reference to the need for a further hearing.
5. The lot owner had the opportunity to make submissions in response to the owners corporation's evidence, and the lot owner's submissions did not seek that the matter be listed for a further oral hearing so that he could question Ms Tasker.
6. In those circumstances, we cannot determine whether there has been a breach of s 50 of the NCAT Act that constitutes an error on a question of law: CLD v Children's Guardian [2017] NSWSC 936 at [17]- [18]; Danis v Commissioner for Police [2021] NSWCATAP 57 at [44]- [48] if it had been raised as a ground of appeal (which it was not).
7. In the absence of such information and transcript; and where the lot owner has not raised as an appeal ground that the Tribunal failed to comply with s 50 of the NCAT Act; further exploration of this issue is inappropriate.
8. The lot owner has not identified in his grounds of appeal that he was denied procedural fairness by being unable to question Ms Tasker. Rather, he has submitted that her evidence should not have been given any weight because she was not questioned, as well as she did not personally inspect the lot and had based her evidence on her assessment of the records of the owners corporation (as well as attaching relevant documents) and instructions from the strata committee.
9. However, weight to be given to evidence that was admitted and a denial of procedural fairness due to not being able to question a witness are distinct issues.
10. A denial of procedural fairness where there was no questioning of a witness involves an error on a question of law, rather than an error of mixed fact and law for which leave to appeal is required (Secretary, NSW Department of Communities and Justice v James [2023] NSWCATAP 64 at [100]; Donohoe v Albulario [2025] NSWSC 9 at [36]- [44]). Denial of procedural fairness generally raises an error on a question of law: McNeill v Clarence Valley Council [2025] NSWCATAP 184 at [179].
11. There is no unfettered right at common law to cross examine a witness at a hearing: GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 at 22F-23F; Lehrmann v Network Ten Pty Limited (Cross Examination) [2023] FCA 1477 at [7]; LK Law Pty Ltd v Karas (Cross Examination) [2024] FCA 265 at [7]; J_annis v Ant-Hassa Pty Ltd_ [2020] NSWCATAP 99 at [31]- [32]; Croll v Form and Colour Pty Ltd [2023] NSWCATAP 204 at [53]- [54]. The critical issue is whether there has been a procedurally fair hearing where a party has had a reasonable opportunity to have its evidence and submissions considered.
12. Failure of the Tribunal to allow cross examination of a witness is not, of itself, a denial of procedural fairness, although it may be so in the particular circumstances (Zurich Australia Insurance Limited v Motor Accidents Authority of NSW & Ors [2010] NSWSC 21; Secretary, NSW Department of Communities and Justice v James [2023] NSWCATAP 64 at [102]).
13. In this matter, the lot owner has not identified in his grounds of appeal that he was denied procedural fairness because he was not given the opportunity to cross-examine Ms Tasker.
14. Grounds of appeal of a self-represented litigant are to be considered generally at to discern whether they raise an error on a question of law, or otherwise grounds for leave to appeal. However, that is subject to the obligation for the Appeal Panel to act in a balanced and procedurally fair way (Conomos v Di Rico [2016] NSWCATAP 5 at [13]). That balancing of interests in the context of conducting a procedurally fair appeal hearing is discussed in McNeill v Clarence Valley Council [2025] NSWCATAP 184 at [179]- [185].
15. In circumstances where the lot owner has not clearly identified denial of procedural fairness due to not having the opportunity to cross examine Ms Tasker, and in circumstances where the owners corporation's appeal submissions have not dealt with the issue, it would not be procedurally fair for us to consider a ground of appeal that has not been identified.
16. However, if we were to determine the issue, it would not be in favour of the lot owner. Procedural fairness principles have been considered by the Appeal Panel on many occasions (e.g. Boreland v Brewis [2024] NSWCATAP 140 at [65]- [67]; McNeill v Clarence Valley Council [2025] NSWCATAP 184; O'Brien v Womens Housing Company Limited [2026] NSWCATAP 3 at [136]- [147]). Whether any practical injustice has been caused is an important consideration.
17. The lot owner had the opportunity to make submissions after service of the evidence of Ms Tasker and did so. He also had the opportunity to make a submission after he had been served with the evidence of Ms Tasker that the matter should be relisted before the Tribunal so that he could question Ms Tasker. As already noted, her evidence was based upon the records of the owners corporation that set out the relevant factual events, including the measures taken by the owners corporation to comply with the consent orders of 25 June 2021. In all the circumstances of the matter, if denial of procedural fairness was raised as an appeal ground, we would not be satisfied there was a denial of procedural fairness.
18. The decision not to further appoint a compulsory strata manager on a limited basis involved the exercise of discretion. Circumstances where the exercise of discretion involves an appealable error are limited to the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505 as follows:

"[i]t is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed ... It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."

1. None of the matters raised by the lot owner satisfy us that an error of a type in House v The King has occurred such that we would grant leave to appeal because the decision is not fair and equitable. The Tribunal made factual findings available to it on the evidence before it. It identified the correct legal principles and exercised its discretion in a legally orthodox and logical manner.
2. The lot owner assert that the Tribunal failed to take into account the "material consideration" of whether the owners corporation had breached its duty under s 106(1) of the SSM Act over a protracted period of time, and was still in breach of its duty. Although the Tribunal's reasons do not contain a detailed discussion of the legal principles pertaining to the duty under s106(1) of the SSM Act, it is clear from the substance of the reasons the Tribunal considered whether the owners corporation was in breach of its duty. However, breach of the duty under s 106(1) of the SSM Act was not, of itself, determinative of whether a further period of limited compulsory appointment should be made.
3. As discussed previously, the consent appointment of Mr Kioussis was to ensure the consent orders of 25 June 2021 be complied with, not a general appointment to conduct all works that were, in the opinion of the compulsory strata manager, necessary for the owners corporation to comply with its duty under s 106(1) of the SSM Act. In that context, it was not inappropriate for the Tribunal to focus upon the completion of the works under the consent orders of 25 June 2021. It was open to the Tribunal on the evidence before it to find that most of the works had been performed, and the owners corporation was in the process of completing the works.
4. We are not satisfied that leave to appeal should be granted because the decision was not fair and equitable.

1. A decision is against the weight of evidence if "the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach" (Collins v Urban at [77] citing Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33; [1991] HCA 23 at 41-42 and Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]).
2. The decision in this matter does not satisfy that test. The lot owner put forward evidence regarding what he asserted were the outstanding works and further works required to repair the common property proximate to the lot, as well as further evidence regarding alleged dysfunction of the owners corporation. The owners corporation, by its current strata manager Ms Tasker, put forward evidence disputing the matters raised by the lot owner. The decision of the Tribunal was not against the weight of evidence such that the Appeal Panel would grant leave to appeal.

Significant New Evidence That Was Not Reasonably Available at the Date of the Hearing.

1. The lot owner's submissions and documents did not clearly identify what new evidence he was relying upon, but we accept there was some new evidence. As discussed previously, to the extent that the evidence refers to factual matters after the Tribunal decision, we do not grant leave to rely upon it.
2. To the extent that the new evidence goes to cl 12(1)(c) of sch 4 of the NCAT Act, it is not significant new evidence that was not reasonably available at the date of the hearing sufficient to grant leave to appeal (Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [19]- [26]).

Has Any Grounds for Leave to Appeal Been Established?

1. No grounds for leave to appeal have been established.

1. As discussed previously, the appeal has been lodged outside the time period in r 25(4)(c) of the NCAT Rules. The lot owner requires an extension of time to lodge the appeal under s 41 of the NCAT Act.
2. The principles applicable to an extension of time are well established and arises from the Appeal Panel decision in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson). At [22] in Jackson, the Appeal Panel stated:

"[22] The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:

(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];

(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7];

(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:

(a) The length of the delay;

(b) The reason for the delay;

(c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and

(d) The extent of any prejudice suffered by the respondent (to the appeal),

- Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and

(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]."

1. The length of the delay is significant (40 days). The reason for the delay is the lot owner's health. As discussed previously, he did not provide medical evidence, but the owners corporation (who has been involved in other litigation with the lot owner) did not dispute that the lot owner suffered from a serious medical condition at the relevant time. The appeal is arguable, but due to the length of the delay more than being arguable is required. There is no identified prejudice to the owners corporation if time is extended.
2. However, as discussed previously, we are of the view that leave to appeal should not be granted as the lot owner has failed to establish the basis for leave to appeal. In those circumstances, it is futile to extend time to lodge the appeal, as leave to appeal is refused in any event.
3. Accordingly, leave to extend time is refused.

1. In the notations to the procedural orders and directions made at the appeal Call Over, it is made clear that if a party is seeking costs of the appeal, they are to provide costs submissions with their appeal submissions.
2. Direction 9(2) of the Appeal Panel at the Call Over on 13 June 2025 states:

"(2) If any party wishes to make an application for costs of the appeal, that party is to lodge with the Appeal Registry and give to the other party any submissions on costs at the same time as their submissions in relation to the appeal."

1. Further, cl 76-81 of NCAT Guideline 1-Internal Appeals makes clear, a party seeking costs of the appeal should make clear that they are seeking costs, and the Appeal Panel has a discretion as to how the issue of costs is to be appropriately dealt with.
2. There are some situations where the issue of costs is reserved, with parties directed to lodge and serve written submissions, including submissions on the issue of ss 50(2) and (3) of the NCAT Act. There are other situations where the Appeal Panel determines the issue of costs in the appeal decision, with no provision to apply to vary the orders (McNeill v Clarence Valley Council [2025] NSWCATAP 184 at [240]- [262]). There are other situations where it is appropriate to made a decision on costs, but give the parties an opportunity to vary (Wells Group Pty Ltd v Betts [2025] NSWCATAP 70 at [78]- [85]).
3. No detailed costs submissions are included in the owners corporation's appeal submissions, contrary to the procedural direction made at the appeal Call Over. The appeal submissions simply conclude with a statement that the appeal should be "dismissed with costs.
4. Although it would be open to us to determine the issue of costs to finality where the owners corporation has failed to comply with direction 9(2) dated 13 June 2025, we regard it appropriate to determine the issue of costs, and if either party seeks to vary the costs order, they may do so in accordance with the manner prescribed in our orders.
5. The proceedings at first instance; and in the appeal, involved an application to appoint a compulsory strata manager on a limited basis. That does not clearly involve a monetary amount "claimed or in dispute" exceeding $30,000 with rr 38 and 38A of the NCAT Rules (The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256 at [109]- [111]). If the owners corporation asserts that rr 38 and 38A of the NCAT Rules apply in any application to vary the costs order, they are to provide detailed submissions addressing the legal authorities that deal with rr 38 and 38A of the NCAT Rules.
6. Accordingly, the provisions of s 60(1)-(3) of the NCAT Act apply.
7. Section 60 of the NCAT Act states as follows:

60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party's own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following -

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter that the Tribunal considers relevant.

(4) If costs are to be awarded by the Tribunal, the Tribunal may -

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

(a) the costs of, or incidental to, proceedings in the Tribunal, and

(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

1. It is well established that it is not sufficient that there are one or more "special circumstances." The "special circumstances" need to be sufficient, in all the relevant circumstances, to cause the Appeal Panel to depart from the usual principle in s 60(1) of the NCAT Act that each party bears its own costs (The Owners - Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [5]- [15]).
2. In FZK v Secretary, Department of Communities and Justice (No 4) [2025] NSWCATAP 278 (FZK (No 4)) at [31]-[41], [52], the Appeal Panel set out the general principles applicable to an award of costs under s 60(2) of the NCAT Act:

"[31] The usual rule is that a party is to pay their own costs of proceedings but, as the legislation makes clear, the Tribunal may make an order for costs if satisfied that there are "special circumstances": s 60(2) NCAT Act.

[32] Six leading principles are apposite.

[33] First, special circumstances are circumstances that are out of the ordinary. It is not necessary to establish extraordinary or exceptional circumstances: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11] quoting Cripps v G&M Dawson Pty Ltd [2006] NSWCA 81 per Santow JA at [60]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32].

[34] Secondly, the onus is on the party seeking an order for costs to satisfy the Tribunal that there are special circumstances warranting an award of costs in its favour: see McEwan v Port Stephens Council (No 2) [2022] NSWCATAP 386 at [38].

[35] Thirdly, the Tribunal is to consider whether the circumstances are sufficient to amount to special circumstances that justify departing from the general rule that each party bear its own costs: BPU v NSW Trustee and Guardian (Costs) [2016] NSWCATAP 87 at [9]. The mere existence of one of the enumerated factors in s 60 of the NCAT Act will not of itself be sufficient to warrant the conclusion that there are special circumstances.

[36] Fourthly, each case will depend on its own particular facts and circumstances: Brunsprop Pty Ltd v Joanne Hay and Wes Davies [2015] NSWCATAP 152 at [27].

[37] Fifthly, mere success (or failure) of an application does not give rise to special circumstances: The Owners - Strata Plan 5319 v Price [2020] NSWCATAP 245 at [46].

[38] Sixthly, the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48].

[39] Overall, what is required is for the Tribunal to exercise its discretion in a manner which is fair and reasonable having regard to the particular circumstances of a particular case.

[40] The decision to award costs pursuant to s 60(2) of the NCAT Act involves, in effect, two decisions. The first is the Tribunal's satisfaction that there are special circumstances warranting an award of costs. The satisfaction involves a degree of subjectivity and thus, in a broad sense, may be described as a discretionary decision (as described in respect of similar legislative provisions in a different statutory context in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [20] per Gleeson CJ, Gaudron and Hayne JJ). If the Tribunal has regard to any matters as set out in s 60(3) of the NCAT Act, the matters must be given due weight.

[41] As s 60(2) of the NCAT Act makes clear, if the requisite satisfaction is reached, the Tribunal "may" make the order. Satisfaction as to the existence of special circumstances merely enlivens the discretion to award costs rather than mandating an award of costs: Al-Aaraj v Commissioner of Police, NSW Police Force (No 2) [2025] NSWCATAP 166 at [40]; Brodyn Pty Ltd v Owners Corporation - Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [32]. This necessitates the making of a second decision (which we term the overall discretion) as to whether in all the circumstances, an award for costs should be made."

...

"[52] An award of costs is intended to be compensatory and not punitive: Latoudis v Casey (1990) 190 CLR 534 at 567; [1990] HCA 59; Grasso v The Owners - Strata Plan No. 52399 [2022] NSWCATAP 91 at [12(6)]."

1. We now deal with the matters in s 60(3) of the NCAT Act.

Whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings? (s 60(3)(a))

1. The lot owner has not conducted the appeal proceedings in a way that unnecessarily disadvantaged the owners corporation. There was overlap in the appeal materials lodged and served, and some lack of clarity. There was no such a copious amount of material that unnecessary disadvantage was caused, notwithstanding the appeal materials could have been more concise and better organised. However, the way the lot owner conducted the appeal proceedings was not out of the ordinary or unusual such that it cased unnecessary disadvantage to the owners corporation.

Whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings? (s 60(3)(b))

1. The lot owner did not unreasonably prolong the appeal proceedings. The proceedings evolved in the orthodox manner, with one Call Over and one appeal hearing.

The relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law (s 60(3)(c))

1. We are not satisfied that the lot owner's appeal arguments were so weak that this criteria is satisfied.

The nature and complexity of the proceedings (s 60(3)(d))

1. The appeal proceedings (which involved a decision not to further appoint a compulsory strata manager on a limited basis) were not so legally or factually complex that they were unusual or out of the ordinary.

Whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance?(s 60(3)(e))

1. The appeal proceedings were not frivolous, vexatious, or otherwise misconceived or lacking in substance. The lot owner has failed in the appeal, but the appeal grounds had sufficient substance.

Whether a party has refused or failed to comply with the duty imposed by section 36(3)? (s 60(3)(f))

1. The lot owner has not refused or failed to comply with the duty to cooperate with the Appeal Panel to give effect to the guiding principle under s 36(1) of the NCAT Act.

Any other matter that the Tribunal considers relevant (s 60(3)(g))

1. There is clearly a long history of disputation between the parties, and that disputation is continuing. However, this appeal involved a decision by the Tribunal to refuse to further appoint a strata manager on a compulsory basis. The appeal proceedings involve that decision. The fact that there has been disputation and litigation between the parties over a long period of time; is of peripheral, if any, relevance to the conduct of the appeal proceedings, which is the central issue for consideration in the context of the matters in s 60(3).

1. We are not satisfied there are "special circumstances" under s 60(2) of the NCAT Act, having regard to the matters in s 60(3). In the absence of "special circumstances," the issue of whether the "special circumstances" are sufficient to cause the Appeal Panel to exercise its discretion to depart from s 60(1) of the NCAT Act and make a costs order in favour of the owners corporation.

(1) The application to extend time to lodge the appeal is dismissed.

(2) There is no order as to costs of the appeal with each party to bear its own costs under s 60(1) of the Civil and Administrative Tribunal Act 2013 (NSW).

(3) If any party wishes to make an application to vary order (2) above (the costs application) the following procedure applies:

(a) the costs applicant is to lodge and serve the costs application, including submissions limited to three pages and any evidence in support, within 7 days of this decision;

(b) the costs respondent to the costs application is to lodge and serve any submissions limited to three pages and any evidence in response within 14 days of this decision;

(c) the costs applicant is to lodge and serve any submissions in reply limited to two pages within 21 days of this decision;

(d) the parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the costs application being determined on the papers. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of the cost's application;

(e) either party may apply in writing to the Appeal Registry with a copy sent to the other party to vary the timetable for costs submissions and documents. Any application to vary must be made by no later than the date for compliance with the timetable obligation sought to be varied.

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.