Baluri v The Owners – Strata Plan No 11258

Background, issues, procedural matters, primary decision

1. The appellant, who was the applicant in the primary proceedings filed 21 February 2024, owns a lot in a 20-lot strata scheme of two-storey townhouses in Lane Cove, a mid-north shore suburb in Sydney, NSW. The scheme was registered on 1 September 1976. The respondent is the owners corporation (OC) of the scheme.
2. In her application the lot owner complained about the governance of the strata scheme on several fronts but focused on three areas of what she said was water entry to her lot from sources said to be common property in breach of the OC's strict duty to maintain and repair common property under s 106(1) of the Strata Schemes Management Act 2015 (NSW) (SSMA). She claimed damages under s 106(5) for water damage to lot property being flooring, furniture and cabinets. There was no issue that the claim for damages was brought within time under the then two-year time limit in s 106(6).
3. The three specific areas of loss and damage were identified by the primary member at [6] and [7] of the primary reasons (PR), amplified at [17] et seq, [41] et seq and [49] et seq. They were:

(1) sewerage pipe and drain leak in kitchen and dining area on 9 September 2023, soaking kitchen and dining room flooring, cabinets and gyprock and presenting a serious health hazard to her and her daughter;

(2) water ingress on 27 October 2023 from front courtyard pipe and drain through side door in living room resulting in carpet damage;

(3) water ingress from a planter box leak into bedrooms 2 and 3 on the upper level.

1. The other allegations related to the OC's alleged failure to act in a timely, professional and transparent manner for all approvals and repairs, upkeep of common property and garden adjacent to the lot owner's lot and discrimination and prejudice within the scheme.
2. In his primary decision made on 11 September 2024 the primary member ordered the OC by its contractors to rectify a planter box outside bedrooms 2 and 3 of the lot owner's lot within six months to ensure that it was waterproof and otherwise dismissed the application.
3. At the appeal hearing we were told by the OC that the work order had been performed, by the contractor attending and not finding a problem with the existing waterproofing.
4. The appeal was filed within time on 8 October 2024 with an amended notice of appeal served on 2 December 2024. There was no objection to reliance on the amended notice of appeal which we grant leave to file to the extent that such leave has not already been granted.
5. Each party had been served with the other party's documents sought to be relied upon in the appeal under preparation directions made on 25 October 2024 with two extensions of time.
6. One hour and twenty minutes of the two hours allocated for hearing the appeal were then taken up with a laborious process of identifying alleged new evidence said by the OC not to have been before the primary member that was interspersed with evidence not so challenged. On analysis and after substantial contest over a significant number of documents, some of the challenged items were found to be in existing evidence and others were not. The latter were excluded from consideration as reasonably available at the time of the primary hearing (a requirement discussed later in these reasons).
7. The excluded documents were, among others, strata financial and administrative records that were said to contradict evidence of the OC at the primary hearing that delayed repair to the front courtyard was because of need to raise the funds and to show the historic acceptance by the OC of maintenance and repair responsibility for the relevant drainage and piping. The rulings on exclusion were noted on the particular documents excluded.
8. The lot owner, who was self-represented as she was at the primary hearing, was then taken in another 35 minutes of hearing time to each paragraph of the primary decision, to attempt to elucidate which factual findings were challenged and to confirm the scope of challenge to conclusions drawn from the factual findings. The responses were noted on the primary decision.
9. By this point the allocated hearing time had been exceeded by about 15 minutes and it was 4.30pm.
10. We note that in [12]-[15] of the primary reasons [PR], the primary member described the unindexed, unpaginated, disorganised and incomplete state of the lot owner's material and the delays during the hearing from these deficiencies.
11. We then took the lot owner to what appeared to be a nub of the challenge on appeal, to PR [36]-[39] which, with [35], read as follows in respect of the first (sewerage leak) issue:

"35. The [OC] submitted against the history of work undertaken from March 2022 to December 2022 that any further incursion of tree roots into the sewer line in September 2023 were not 'reasonably foreseeable' by the [OC] having regard to the recommendations of [the plumbing contractor] in September 2022, which work was undertaken in December 2022, only 9 months before this incident.

36. Also, the [OC] submitted from [the lot owner contact point for trades]'s evidence that the sewer line inspection point for the [lot owner's lot] is situated in the rear courtyard of [the lot owner's lot] and that the concrete floor of the ground level of the [lot owner's lot] and the floor of the rear courtyard of the [said lot] are level. The [contact person] observed through the inspection point that the sewer in the rear courtyard of the [said lot] is about 60cm beneath the rear courtyard floor. Observing notes 4 and 7 on SP 11258, the unit areas include courtyards and the courtyard depths are limited to the upper surface of the concrete slab forming the ceiling of the garage parking spaces below, and where no concrete slab exists to 1m of the south eastern part [lot owner's lot].

37. The [OC] submitted that if this is correct, the sewer line which became blocked in September 2023 is situated within the rear courtyard of [the lot owner's lot] and is not on common property.

38. The [OC] submitted that for these three reasons namely that:

the loss or damage caused to the [lot owner] was not 'reasonably foreseeable' pursuant to s 106(5) of the SSMA, having regard to the [OC's] recent maintenance works on that precise sewer line;

the sewer line which became blocked is situated within [the lot owner's lot] and not on the common property (and therefor does not fall to the [OC] to maintain), and

the [lot owner] had failed to prove on the balance of probabilities the precise loss or damage caused by failure of the sewerage pipe, then

39. The Tribunal accepts the [OC]'s submissions and awards no sum for this item as this loss was not reasonably foreseeable: Owners SP 80881 v Gregg [2022] NSWCATAP 172 at [35]- [39]; and Vickery v Owners SP 80412 [2020] NSWCATAP 284 at [98]."

1. The earlier work referred to was by plumbers to remove roots and other blockages in the lot's sewerage piping between April and December 2022. The lot owner purchased the lot on about 3 April 2023.
2. The primary member then said at PR [40] that, if the foregoing was found to be incorrect, then the maximum that he would have awarded would have been $5,000 being the cost of repairing or replacing the cupboard doors and kickboards in the lower kitchen damaged by the sewage leak, as well as $3,000 to replace the similarly-affected dining room carpet. At [25]-[28] he had pointed to a single tax invoice totalling $82,500 including GST from a kitchen and bathroom renovator. The cost of damaged items was said not to be distinguished from renovations to the lot that started shortly after the sewerage incursion. The primary member did not accept the lot owner's contention that more than the lower level of kitchen flooring and fittings was affected by sewerage entry, that she had to replace entire units whose lower parts had been affected and that she would not have renovated the kitchen if that degree of damage had not occurred. The primary member found that the undissected invoiced cost went beyond compensation.
3. We raised with the parties that the cited authority at PR [39] did not appear to support the conclusion in that paragraph - indeed, Gregg at [39] appeared to say the opposite - and the parties might wish to supplement with further authority. The hearing clearly needed to continue on a further date.
4. We also pointed out that the definitions (discussed later in these reasons) of "common property" and "common infrastructure", appeared to show that the issue on this aspect was to the effect that the sewerage pipes in question serviced more than one lot, which required reference to a sewerage diagram that we had not been taken to as in evidence.
5. We adjourned the proceedings part-heard and urged the parties to see if they could negotiate a resolution, which did not occur.
6. The appeal hearing resumed at 2.15pm on 12 March 2025 and concluded with our reserving the decision at 4.55pm.
7. The second issue dealt with in the primary decision (front courtyard pipe and drain overflow through side door into living room) at PR [41]-[48] focused on plumbing advice to the OC that remediation required excavation and saw cutting in the lot owner's front courtyard. The expense required funds to be raised and the works were completed in April 2024.
8. Between November 2023 and April 2024 the lot owner had tiled the courtyard in substitution for the existing grass, soil and loose pavers where the drainage works needed to be undertaken. She said that she was not notified of the upcoming works, that she paid $6,500 to restore the part of the tiles that had been lifted and that the OC had paid for similar restoration on the adjoining lots but not hers. The OC she said had suggested re-using the lifted tiles but these had been damaged in removal.
9. The primary member accepted the content of an email from the OC representative to the lot owner dated 22 December 2023 5.50pm which notified the lot owner of the risk of tiling where the stormwater drain still needed to be dug out: "As you know the front sewer line needs to be d[u]g out ... I would recommend being very careful about paving anywhere since you don't want to risk water being guided towards the building's doors in a downpour". Accordingly, the primary member awarded no damages because the lot owner effectively took the risk.
10. The third issue concerned the first level planter box (PR [49]-[54]) on which the lot owner succeeded. This was not the subject of appeal.
11. There were two other issues. The fourth issue concerned garden maintenance on which the primary member (PR [55]-[61]) found that the complaints were not sufficiently specific or related to a pond in the lot owner's rear courtyard which was lot property.
12. The fifth and final issue concerned complaints about governance of the scheme. The primary member (PR [62]-[66]) rejected this complaint for lack of specificity and the fact that the lot owner was not a member of the strata committee (SC). He accepted the OC's representative's evidence that SC meeting minutes were posted on a scheme noticeboard as required under SSMA Sch 2 para 4.

Principles governing appeals from the Consumer and Commercial Division

1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) states, in respect of Division decisions:

(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."

1. Clause 12 of Schedule 4 to the NCAT Act states:

An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:

(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. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
2. In summary, 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.
3. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, more recently revisited in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25]- [40] esp at [30]-[32], the Appeal Panel set out at [13] a non-exclusive list of questions of law:

(1) Whether there has been a failure to provide proper reasons where they are required;

(2) Whether the Tribunal identified the wrong issue or asked the wrong question;

(3) Whether a wrong principle of law had been applied;

(4) Whether there was a failure to afford procedural fairness;

(5) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations;

(6) Whether the Tribunal took into account an irrelevant consideration;

(7) Whether there was no evidence to support a finding of fact; and

(8) Whether the decision is so unreasonable that no reasonable decision-maker would make it.

1. A question of mixed fact and law, such as an alleged error in applying legal principle to the facts, is not a question of law unless the relevant facts are jurisdictional in nature or do not require the appellate tribunal to resolve disputed facts relevant to the matter in dispute, or the question of law does not depend on facts not found: FTB v Children's Guardian [2024] NSWCATAP 174 at [8]; O'Keefe v Integral Corporate Property PL [2020] NSWCATAP 76 at [16]; Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]; Orr v Cobar Management PL [2020] NSWCCA 202 at [48], [109]; Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30 at [21]- [23]; Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109 at [43]; and authority cited in those decisions. However, as noted by Basten AJ in Donohoe v Albulario [2025] NSWSC 9 at [33], this general requirement for purity does not stand in the way of an Appeal Panel making necessary findings of fact about the composition of the primary tribunal or conduct of the primary hearing when the question of law concerns a denial of procedural fairness.
2. Taking into account an irrelevant consideration or not taking into account a relevant consideration includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd [2000] FCA 1343; (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179.
3. Adequacy of reasons will vary according to the nature of the determination and of the determining body: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 esp at [77].
4. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited by para 12(1) of Sch 4 to the NCAT Act. In such cases, as already set out, 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, the Appeal Panel stated at [76] and [79] that a substantial miscarriage of justice for the purposes of cl 12(1) in Sch 4 to the NCAT Act 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. ...

[79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]."

1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of para 12(1) of Sch 4 to the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b): Pholi v Wearne [2014] NSWCATAP 78 at [32]. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having 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 so that it would be in the interests of justice for it to be reviewed."

1. Turning to the specific grounds in cl 12(1)(a) and (b) of Sch 4 to the NCAT Act, in Collins the Appeal Panel said:

"[77] As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that:

1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12].

2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where 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 - Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]."

1. The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with under the ground in para 12(1)(c) of Sch 4 to the NCAT Act was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal, the Appeal Panel stated at [37]-[39]:

"37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act:

'In order to fall within this paragraph the appellant must be able to point to evidence which:

(2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.'

38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]:

'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said:

'23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud.

24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).'

39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown:

'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'"

1. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]:

"An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal."

1. As the Appeal Panel explained in Cominos v Di Rico [2016] NSWCATAP 5 at [13]:

"It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]- [316]). Relevantly, s 38(2) provides that that Tribunal 'may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice'."

1. Nevertheless, the appeal grounds must be reasonably discernible from the material before an Appeal Panel rather than the result of an artificial construct imposed on the material by the Panel: Damico at [45].
2. It is difficult to distil grounds and characterise them because the notice of appeal and supplementary documents contained a long (and very repetitive) series of allegations, did not characterise them comprehensively and added allegations on each iteration.
3. Some of the allegations addressed matters that had not been the subject of apparent debate at the primary hearing and were not the subject of findings or, if debated, were not relevant to make findings on since they were not relevant to an issue that the primary member had to determine. What the member had to determine was responsibility for and measure of damage to lot property on three matters, maintenance of gardens and governance issues. Thus, for example, criticism of the form of repairs carried out by the OC as temporary fixes rather than permanent solutions was not relevant to any of these (it was whether the OC was responsible in what it did for damage to lot property), nor was alleged unauthorised entry to carry out common property maintenance and repair (it was the effect of the repair - did it cause the tile losses or did the lot owner's conduct cause those losses), nor was "unauthorised plantings near stormwater drains, breaching both statutory duties and building standards" because the focus was on fixing the damage caused by tree roots rather than who was responsible for the trees that allegedly caused the damage. Allegations of conduct justifying criminal or penalty proceedings were beyond the scope of what was to be dealt with in the primary proceedings.
4. Other allegations of "inconsistent or false testimony" by the OC's witness were matters of conflicting evidence which fell to be assessed within debate on whether a finding or conclusion of fact was against the weight of evidence actually led (as opposed to documents now sought to be put forward).
5. Doing the best we can on the material, the following emerge:
6. Error of law:

(1) The primary member acted on a wrong legal principle because he did not take into account what constituted the definition of common property in relation to sewer pipes in the rear courtyard and it was clear that the relevant pipes serviced more than one lot. The Owners - Strata Plan No 6174 v Mosman [2002] NSWSC 866, The Owners - Strata Plan No 21702 v Krimbogiannis [2009] NSWSC 1456 and The Owners - Strata Plan No v Dridi [2020] NSWCATAP 672 were cited, the last as just reproduced, without a complete citation.

(2) The primary member acted on a wrong legal principle that the OC's recent maintenance works on the rear courtyard sewer line made the loss and damage suffered by the lot owner on 9 September 2023 not "reasonably foreseeable" within the meaning of SSMA s 106(5).

(3) The primary member did not take into account relevant documents on the direct cost of repairs of the damage that distinguished it from general renovations of the kitchen.

(1) If the first error of law was not properly regarded as an error of law because there was a contested matter of fact as to whether the relevant pipes serviced more than one lot, then the primary member erred in not finding that the weight of evidence favoured the pipes servicing more than one lot which made them common property. As a result, the decision was not fair and equitable.

(2) The primary member erred in not putting weight on the OC's historic acceptance of maintenance and repair responsibility for the rear courtyard sewer pipes. As a result, the decision was not fair and equitable.

(3) The primary member erred in not putting weight on the OC's acceptance of responsibility to fix the neighbouring lots' front courtyards after the tree root repair work but not the lot owner's. As a result, the decision was not fair and equitable.

(4) The primary member erred in not giving weight to the evidence that showed the damage in the floor and just above the floor in the kitchen required the complete repair of the kitchen joinery and connected items.

1. A JADE search did not find the Mosman or Dridi decision. A different decision of the NSWCA on a different, irrelevant aspect of SSMA s 106 was found in respect of Krimbogiannis. Whether or not these were impermissibly generated by AI does not need to be presently determined as the decisions were clearly irrelevant. We have not reproduced them in the list of cases cited.
2. In a document dated 2 December 2024 titled "Appeal Statement", to which was attached some of the new material not before the primary member that we have excluded, the lot owner referred to the correct citation of The Owners - Strata Plan No 21702 v Krimbogiannis [2014] NSWCA 411. That decision did not address the current issue.
3. The same document raised new issues not before the primary member and gave new detail on existing issues, including the governance issue. It was in effect an attempted new hearing of the case on different evidence, contrary to the principles governing appeals set out above. Some of the references to the Tribunal's alleged failure to investigate allegations not in the application nor in the primary evidence conveyed the impression that the lot owner regarded the litigious process as in effect a wide-ranging inquiry into the strata scheme equivalent to a Royal Commission but without binding terms of reference.
4. The statutory provisions to be applied on what constitutes common property, discussed below, are not in doubt. Their application in the present case is on contested facts. It was controversial whether the pipe was for the exclusive enjoyment of the lot owner's lot. The appeal ground therefore raised an alleged error of fact requiring grant of leave. One however does not need to consider whether the criteria for grant of leave to appeal are met if the appellant does not establish that there was an error of fact.
5. As mentioned earlier in these reasons, the definition of "common property" in SSMA s 4 was the same as set out in the Strata Schemes Development Act 2015 (NSW) (SSDA) s 4 being any part of a parcel not comprised in a lot, including any common infrastructure that is not part of a lot. The definition of "lot" required common infrastructure to be described in a prescribed manner on the strata plan as part of a lot to be excluded from common property.
6. "Common infrastructure" was defined in SSDA s 4 to mean, among other things, "(b) the pipes ... that are not for the exclusive benefit of one lot and are - (i) in a building in relation to which a plan for registration as a strata plan was lodged with the Registrar-General before 1 March 1986, or (ii) otherwise - in a building or in a part of a parcel that is not a building, or (c) the cubic space enclosed by a structure enclosing any such pipes". The plan for the subject strata scheme was lodged before 1 March 1986.
7. The definitions of "common property" and "common infrastructure" were in substance and operation the same as those in operative legislation when the strata scheme was registered, being the Strata Schemes (Freehold Development) Act 1973 (NSW) s 5; in the latter the term used for common infrastructure was "structural cubic space" and "exclusive enjoyment" was used rather than "exclusive benefit".
8. The difference between pre- and post-1 March 1986 registration of schemes was therefore that in the latter the pipes that were not for the exclusive enjoyment or benefit of one lot had to be in a building, rather than in a building or in a part of the scheme land (lot property and common property) that was not a building.
9. The registered strata scheme plan was in evidence at the primary hearing and was before us. It did not show that the relevant sewer pipe was for the benefit or enjoyment of more than the lot owner's lot. The sewer diagram was not before us on the first half-day of hearing and was not established to be in evidence before the primary member.
10. At the outset of the second half-day of hearing, the lot owner sought to tender and rely on the sewer diagram. She said that it was essential for the determination of a central issue and relied on s 38(2) and (6)(a) of the NCAT Act. These provisions respectively say that "The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice" and "The Tribunal - (a) is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings".
11. The OC resisted the tender. It said that, if the sewer diagram had been tendered, then it is quite possible that other evidence could possibly have been called by the OC such as the nature of the pipe that broke, its linking with other pipes and the location of the breakage more precisely than the existing evidence - expert evidence may have been sought: Coulton v Holcombe (1986) 162 CLR 1, [1986] HCA 33 at [7]- [9]; Jakin Constructions PL v Shrimpton [2024] NSWCATAP 39 at [49]- [50]. In those circumstances, it was inappropriate to allow the tender on appeal.
12. On consideration, we accept the OC's submission and have not taken account of the sewer diagram. The OC had led evidence of measurement and observation from the strata representative to show that the pipe was located within lot property above the level of common property on the strata plan. There was then no evidence on whether or not that pipe was for the benefit of other lots which is what the lot owner was required to establish. What was sought to be tendered by the lot owner sought to fill that gap in her proof. The plan was reasonably available at the time of the primary hearing. The provisions relied upon by the lot owner were not intended to override that restriction and had an inbuilt requirement of procedural fairness. It would not be procedurally fair, on the authority of Coulton and Jakin, to allow this late tender and it would be directly contrary to the provisions excluding evidence reasonably available at the time of primary hearing.
13. We are reinforced in that conclusion by emails, in the bundle attached to the lot owner's application, of 4 January 2024 in which the lot owner asked the OC representative for a copy of "the location of the sewage and stormwater drains and the architectural drawing" for the lot and on the same day the representative responded by providing "the only sewage plan I have; it is possible that the Council has more details".
14. Without that dimension of the issue being addressed, the lot owner did not establish at the primary hearing, as required by the authorities and the legislative provisions cited, that the relevant sewer pipe was part of common property, because it was not established to be part of common infrastructure and was established, as set out at PR [36]-[37], to be part of lot property.
15. The primary member did not mention an email from the plumber to the strata manager dated 14 September 2023 which mentioned, further to the blockage cleared two months before, a further blockage "on the outlet of the boundary trap" and recommended that the "boundary trap be relined to the outlet of the boundary trap connecting to Sydney Water's main". With further exploration and evidence before the primary member this may have formed an evidentiary basis for an inference that the lot owner's blocked sewer pipe serviced more than the lot owner's lot. Without that exploration there is not sufficient weight sufficient to satisfy the other matters to justify a grant of leave.
16. There was no case articulated or proved that the OC was estopped from denying that the pipe was not common property by reason of the bare allegation that it had repaired or maintained the pipe or similar pipes in other courtyards. There was insufficient evidence to establish that the tree roots blocking the pipe (whatever the status of the pipe) emanated from common property.
17. Accordingly, the lot owner has for these reasons, and irrespective of whether the loss was reasonably foreseeable on the authorities cited by the primary member, not made out the OC's responsibility and there is no error of law or fact infecting the primary member's finding to this effect.
18. We add that we have significant doubt that the primary member's alternative finding was correct, namely, at PR [38(1)], that the lot owner's loss was not reasonably foreseeable because the OC had recently undertaken works to remediate any issue. The question of reasonable foreseeability must be addressed in the context that the OC has a strict duty under SSMA s 106 of maintenance and repair of common property irrespective of previous attempted repairs. If the loss was reasonably foreseeable when the original remediation was attempted, that attempt cannot, without more, make loss any less reasonably foreseeable if there is a recurrence.
19. Additionally, the invoice on its face for the kitchen renovations did not establish that the entire lump sum arose from the sewerage entry and damage to the floor and bottom parts of the joinery. Even if the entire joinery needed to be removed and replaced because of the severe damage to its lower parts and that affected the need to replace some other items, that amount was not differentiated from the rest of the work described in the invoice. In the evidence before the primary member, there was no other material to dissect the amount.
20. The lot owner's appeal therefore fails in respect of the alleged loss arising from sewerage entry from the rear courtyard pipe.
21. Turning to the re-tiling loss in the front courtyard, there was no issue that the work was to common property.
22. The OC objected, in reliance on Owners SP98503 v Morell [2021] NSWCATCD 124 esp at [47], that this complaint was not in the lot owner's application or any amended application and was raised only during the hearing. Morrell required a cross-application by a respondent where a respondent sought relief for which the SSMA required an application, which is a different category. Further, it appears that the OC was able to deal with the allegation despite its lateness.
23. The OC dealt effectively with this allegation because of two matters as set out below.
24. First, the OC by its representative gave evidence that explained reasonably on the evidence before the primary member the five months between the lot owner's report on 27 October 2023 of water entry from the side door and resulting damp carpet and the remediation in April 2024. On the evidence before the primary member, the OC required to raise funds to meet the initial exploratory and removal work, which itself involved excavation, and any further work arising from that investigation. Even if the OC had reserves, these may have already been committed if the reserves had been properly raised.
25. Secondly, in the lot owner's evidence was an email from the representative to the lot owner on 22 December 2023 which raised the risk of "paving anywhere" having adverted to the excavation work required to be done in the front courtyard. This followed emails from the lot owner on 4 November 2023 that recognised the need for the remedial work to be done first by complaining that the remedial work was holding up completion of the lot owner's works. There were further emails to similar effect in mid-November 2023 with the lot owner stating she would proceed with the paving work because the permanent fix of the drain hadn't been approved by the OC.
26. These emails were in the documents with the lot owner's application. They indicated a choice by the lot owner to proceed with the tiling, knowing that the drainage work had not been completed.
27. There was nothing in the evidence before the primary member drawn to our attention which made it an error that weight was given to these matters.
28. The lot owner's appeal therefore fails in respect of the alleged re-tiling expense.
29. In relation to gardening maintenance, there was no specificity in the areas the subject of complaint and proof that they were on common property. The OC's representative gave evidence that the strata plan locations and dimensions showed the pond the subject of one aspect of the complaint was on the lot owner's property.
30. Again, there was nothing in the evidence before the primary member drawn to our attention which made it an error that weight was given to these matters. Indeed, identifying the deficiencies and locating them on common property with specificity was not only required to establish the OC's responsibility, but also to make relief in the form of a work order sufficiently specific: Glenquarry Park Investments PL v Heygesi [2019] NSWSC 425 esp at [104]-[105], [111]-[114].
31. The lot owner's appeal therefore fails in respect of the gardening allegations.
32. For similar lack of specificity and absence of evidentiary support the lot owner's appeal also fails in respect of her governance complaints. The lot owner was not a member of the OC and there was insufficient evidence to resolve in the lot owner's favour the conflicting evidence about whether there was information about SC meetings on the scheme noticeboard as required by SSMA s 5. Contrary to the lot owner's submission, it was not the role of the Tribunal to require the OC to provide proof of compliance when there was insufficient evidence of non-compliance, the evidence being only the lot owner's assertion.
33. There was no application under ss 237 or 238 and no proper parties for the latter.
34. Some of the allegations made by the lot owner of misconduct or false evidence by the OC representative could well have attracted sanction for absence of a proper basis if made by a legal professional bound by professional rules. The privilege allowed to parties to litigation should not hold them to a lower standard simply because they are not legally represented, particularly where the lot owner's communications at points refer to having taken unspecified legal counsel.
35. Leave to appeal accordingly will be refused and the appeal dismissed.

(1) Grant leave (to the extent not already granted) to file the amended notice of appeal served 2 December 2024.

(2) Leave to appeal (to the extent that leave is required) is refused.

(3) Appeal dismissed.

(4) In respect of costs of the appeal:

(a) Any application in respect of costs together with submissions and any further documents in respect of costs and including any application for a hearing on costs are to be filed and served within 14 days after date of these orders;

(b) Any submissions and further documents in respect of costs in response are to be filed and served within 28 days after date of these orders.

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.