Baker v The Owners - Strata Plan No. 9348

Grounds of appeal

1. In the Notice of Appeal, received on 24 June 2024, the grounds of appeal were: 1. the respondent was in breach of the duty imposed by s 106(1) of the Strata Schemes Management Act 2015 (NSW), which will be abbreviated in these reasons to SSMA, 2. the decision was not fair and equitable, and 3. the decision was against the weight of the evidence.
2. It is noted that the last two of those three matters require a grant of leave to appeal.
3. There was also reference to the late provision of a 17 April 2024 letter from David Johnson, that was not provided until the date of the hearing, and the appellant asserted she had been trying for 25 months to have the respondent undertake repairs to common property repairs to the balcony of her lot.

Reply to appeal

1. No Reply to appeal was lodged for the respondent.

Timing

1. The reasons were dated 28 May 2024 and r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) required that the Notice of Appeal be lodged within the following 28 days, which is by 25 June 2024.
2. Since the Notice of Appeal was received on 24 June 2024, the appeal has been commenced within time.

First instance decision

1. In the reasons published following the hearing, there was a finding that there had been a breach of s 106 of the SSMA. However, no order for work to be carried out was made.
2. The reasons for not making such an order were set out as follows, noting that references to the applicant are references to the appellant: 24. A fundamental difficulty for the applicant however is that she has failed to place before the Tribunal any evidence of the work required to remedy the deterioration of the paintwork or a scope of work for the remedial works necessary to repair the paintwork to the balcony. 25. Further: (1) The deterioration and buy that fact the falling into disrepair of the paintwork was minor. (2) There was no evidence of the deterioration of the paintwork causing any loss or damage to the applicant. (3) [T]he paintwork cannot be viewed from the applicant's unit. (4) The Owner Corporation has had the paintwork inspected and was informed that the cracking was to the painted render only and not to the concrete floor of the balcony and the cement banning in which the cracks had occurred was in good condition. (5) The Owners Corporation had inspected the paintwork, noted the issues in other balconies and had determined that it will be dealt with in the course of a regularly scheduled maintenance plan as funds become available.

Documents

1. Documents lodged by the parties in respect of this appeal were those received from the appellant, on 15 July, 19 August and 2 September, and by the respondent on 15 July and 21 August, all in 2024.

Hearing

1. After introductory matters, and having identified the relevant documents, the Tribunal proceeded to hear oral submissions in the usual sequence of appellant then respondent, followed by the appellant in reply, so that each party was able to speak in support of their case and to respond to the case of the other party. Those submissions are summarised below.

Appellant's submissions

1. In oral submissions, the appellant said she had been dealing with this issue for three and a half years and that the cracks were getting worse. She indicated that she sought to have repairs carried out by her preferred contractor and to have her expenses reimbursed. Her expressed belief was that the respondent did not intend to take any steps to repair the cracks, and she questioned why the respondent would not approve the quotation she had obtained. The appellant summarised her case by saying that she paid her levies and wanted the property to be maintained.

Respondent's submissions

1. The respondent's strata manager suggested a report had been obtained which was said to suggest that the common property was in good order and that action under s 106 was not required. A view was expressed that s 106 of the SSMA had not been breached by the respondent, contrary to the finding made at first instance. After the appellant's submissions in reply, it was said that there is not enough money to do the work sought by the appellant and that the capital works budget and plan would be considered at the next Annual General meeting.

Submissions in reply

1. The appellant repeated her position that she wanted to have carried out the work covered by the quotation she obtained and expressed the view that it was taking too long to carry out the work that she sought.

Consideration

1. There were two clearly discernible reasons why no order for work to be carried out was made. The first, set out in [24] (quoted above), was that the Tribunal was unable to frame a work order. It is clear, from decisions such as Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 (Glenquarry) at [114], that any order requiring work to be carried out by an owners corporation should not be a vague wish list but must be specific as to what work is required.
2. While a Tribunal member who is conducting a hearing may be able draft a work order even if no wording is provided by an applicant, that cannot be done if an applicant does not provide sufficient evidence to enable an order to be formulated, as was said to be the case in this instance.
3. Since the appellant has not, in this appeal, identified any evidence that would have enabled such an order to be made, it cannot be said that the first reason for dismissing the application involved any error.
4. The second reason why no order for work to be carried out was made, as set out in [25] (quoted above), plainly involved the exercise of the discretion which the Tribunal has on the question of whether such an order should be made.
5. In the SSMA s 230(1) provides the Tribunal with the power to make an order arising out of an agreement reached at mediation while s 232(1) provides a broad order-making power. The reasons referred to s 230 but that is of no consequence since both those provisions commence with the words "The Tribunal may …" which serves to provide the Tribunal with a discretion as to whether an order should be made.
6. Since an appeal is not an occasion to re-run the first instance hearing, the question requiring consideration is whether the exercise of that discretion involved an error. The test as to whether the exercise of a discretion involved an error was set out as follows in the joint judgement of Dixon, Evatt, and McTiernan JJ in House v The King [1936] HCA 40; 55 CLR 499 at 504-505: 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.
7. The appellant did not identify any of the grounds set out in that passage, namely (1) acting on a wrong principle, (2) being guided by extraneous or irrelevant matters, (3) making a mistake, (4) failing to consider a relevant matter, or (5) a result that is so unreasonable or plainly unjust as to warrant an inference the discretion has not been properly exercised. As the appellant has not identified any of those grounds, it cannot be said that the second reason for dismissing the application involved any appealable error.
8. The appellant also raised, in the Notice of Appeal, a letter from David Johnson dated 17 April 2024 that was said to have been "not forwarded by mail to me prior to the Tribunal hearing". In the reasons published at first instance, it was said that leave was granted to rely on that letter, which was emailed to the Tribunal on the day of the hearing.
9. The late provision of that letter does not assist the appellant: (1) its description did not materially add to the earlier report of its author which said the cracks upon which the appellant's claim was based were only surface cracks, confined to the render, and (2) there was an unchallenged sentence saying the appellant "refused to provide her email address to enable the letter to be sent to her".
10. Hence, the position would not be any different if that letter had been provided to the appellant prior to the hearing. Nor would either the inclusion or exclusion of that letter as part of the evidence have had any impact on the outcome of the proceedings.
11. The reasons provided for the first instance decision were both evidence-based and correctly applied the relevant legal principles with the result that the appellant's claims that the decision at first instance (1) was not fair and equitable, and (2) was against the weight of the evidence, have not been made out. Accordingly, there is no basis for granting leave to appeal.
12. Further, in accordance with what was said in Cominos, we have (1) reviewed the appellant's grounds of appeal, (2) the material provided, and (3) the decision of the Tribunal at first instance. That exercise has not suggested any ground that may raise either an error on a question of law or a basis for leave to appeal.
13. There is, however, one aspect that is a cause for concern. The position of the respondent at the time of the first is instance hearing, set out at 25 and quoted above, was to the effect that the subject matter of the appellant's complaint "will be dealt with in the course of a regularly scheduled maintenance plan as funds become available".
14. To the contrary, in the submissions provided by the respondent in relation to this appeal, the respondent said: The owners corporation assessment based on the tolerance information and the licen[s]ed builder[']s report is that the common property is in a good and serviceable repair and action under Section 106 of the Strata Schemes Management Act is not required.
15. Fortunately for the respondent, the Tribunal is not re-hearing the application because that change of position not only undermines a reason why the Tribunal decided not to make an order for work to be carried out but also contradicts a finding of the Tribunal that there had been a breach of s 106 of the SSMA.
16. It is noted that s 80 of the SSMA requires the respondent to prepare and review a capital works plan for a ten-year period, which is to include the timing of proposed work, and that such a plan may have addressed the issue raised by the application which is the subject of this appeal.
17. The appellant made a claim for the cost of photocopies and photos. As the appeal is dismissed there is no basis to make an order that she be reimbursed for such costs.

ORDERS

1. For the reasons set out above, the following orders are made. 1. Leave to appeal is refused. 2. The appeal is dismissed.

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

Amendments 23 September 2024 - no amendment made opened in error 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: 23 September 2024