Bartlett v The Owners �e" Strata Plan No 12375 [2025] NSWCATCD 92;

1. On or before 7 March 2025 the present applicant will notify the Tribunal and the present respondent (OC) by email whether or not the applicant seeks to join the current lot owners (the applicant's successors in title who purchased after the filing of the application in these proceedings) with their consent as co-applicants, or as respondents, or not at all.

2. On the notification under order 1 and noting no objection to this course by the OC, the current lot owners will or will not be joined in accord with the terms of the notification.

3. Order that on or before 21 March 2025 the OC file and serve by email its written submissions on the effect of any joinder of the current lot owners and the correct construction of order 2 made by consent on 29 March 2022 in renewal proceedings SC 22/05057.

4. Order that on or before 4 April 2025 the applicant and any newly-joined party file and serve by email its or their written submissions in response to the written submissions under order 3.

5. Order that, as separate questions and in advance of hearing and determination of the rest of the proceedings, the following are to be determined: whether the Tribunal has jurisdiction to hear the application; the correct characterisation of consent order 2 made on 29 March 2022 in renewal proceedings SC 22/05057.

6. Adjourn the proceedings and any further production questions under the summons dated 4 February 2025 to 1 May 2025 unless the separate questions are determined earlier by other than dismissal of the application, in which case an earlier date can be allocated.

1. On 10 March 2025 the times in my procedural orders made on 21 February 2025 were varied on the applicant's request and over the objection of the OC to, respectively, 21 March for order 1, 4 April for order 2 and 18 April for order 3.
2. In compliance with those orders, the applicant advised the Tribunal on 21 March 2025 that the current lot owners, to whom he had sold after filing his application, were not joined as co-applicants and that he did not seek to join them as respondents. I have assumed that the current lot owners did not consent to joinder as co-applicants.
3. Also in compliance with the extended order time, the applicant and his solicitor filed and served written submissions on 14 April 2025. They were not in "response" to the OC's further written submissions on those questions because nothing further had been filed or served by the OC, but they were responsive to the OC's existing written submissions filed 21 February 2025 which (in the absence of further joinder) dealt with topics of the separate questions (among other matters). I have read the applicant's written submissions in conjunction with each party's existing material on the issues raised by the separate questions in determining those questions on the papers.
4. At a directions hearing on 1 May 2025 the parties consented to the separate questions being determined on the basis of the parties' written submissions without the need for a hearing.
5. The separate questions in substance are: (1) whether the Tribunal has jurisdiction to hear the application in circumstances where the applicant sold the lot and paid the contested levies after filing the application and the new lot owners are not parties to the proceedings, and (2) the correct characterisation of consent order 2 made on 29 March 2022 in renewal proceedings SC 22/05057.
6. Section 104 of the Strata Schemes Management Act 2015 (NSW) (SSMA) provides as follows:

104 Restrictions on payment of expenses incurred in Tribunal proceedings

(1) An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings.

(2) An owners corporation that is unsuccessful in proceedings brought by or against it for an order by the Tribunal cannot pay any part of its costs and expenses in the proceedings from its administrative fund or capital works fund, but may make a levy for the purpose.

(3) In this section, a reference to proceedings includes a reference to proceedings on appeal from the Tribunal.

1. SSMA ss 226 and 232 relevantly provide as follows:

226 Interested persons

(1) The following persons are interested persons for the purpose of making an application to the Tribunal under this Act -

...

(d) an owner of a lot in the scheme, a person having an estate or interest in a lot or an occupier of a lot.

232 Orders to settle disputes or rectify complaints

(1) Orders relating to complaints and disputes The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following -

(a) the operation, administration or management of a strata scheme under this Act,

(b) an agreement authorised or required to be entered into under this Act,

(c) an agreement appointing a strata managing agent or a building manager,

(d) an agreement between the owners corporation and an owner, mortgagee or covenant chargee of a lot in a strata scheme that relates to the scheme or a matter arising under the scheme,

(e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,

(f) an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act.

1. At the time of filing the application that began these proceedings, the applicant was a lot owner and had clear standing under SSMA ss 226 and 232 to bring the proceedings in respect of his claims relating to the construction and application of SSMA s 104, and the Tribunal by reason of those provisions had clear jurisdiction in respect of the present application.

1. The first question turns on whether that clear standing and jurisdiction at time of the lot owner filing his application ceased under the same provisions when the applicant sold the lot.
2. The OC submitted that "at the point in time in which the Tribunal is tasked with deciding whether to make an order under s 232, it must be satisfied that the applicant is an 'interested person, an original owner or building manager'. In this way, the Respondent submits that the requirement to fit within that certain class of persons is a jurisdictional fact. In other words, it is a criterion- the satisfaction of which enlivens the exercise of the statutory power or discretion in s 232. If the criterion cannot be satisfied then the decision purportedly made in exercise of s 232 will have been made without the necessary statutory authority required of the decision maker." [emphasis in the submission] The words "on application by an interested person" in s 232 must exist, not only at time of application but also at the time the Tribunal makes an order. The OC relied on authority, discussed below, that it said was analogous. It also submitted that the application was a continuing matter until the point at which it was determined. The SSMA relevantly distinguished, in the present tense of s 226(1) and in s 145(2), between lot owners and former lot owners.
3. The applicant submitted in substance that standing to bring proceedings and jurisdiction arising from the same provisions as give standing is determined at time of filing the proceedings and is not lost during the proceedings. He submitted that the wording "on application" by an interested person in SSMA s 232(1) reinforced that the time to determine standing and jurisdiction is at the time of application, as did the reference in s 226(1) which defines status of a person "for the purpose of making an application to the Tribunal" which must in its present tense refer to the time of application. There were no words that removed jurisdiction or standing once conferred. The order sought from the Tribunal was to resolve a then-existing complaint or dispute which did not go away by reason of the sale of the lot.
4. The applicant further pointed to the anomaly and injustice that would otherwise be caused and which he said was illustrated by the present proceedings: a lot owner who was subject to the circumstances giving rise to the claim for relief would be denied the opportunity to seek that relief in favour of a new lot owner who could very well have no interest in continuing to seek the relief (because, for example, he had not paid the levies in question). In the present case, the outcome could be (if the facts were so found) that the statutory obligation on the OC in SSMA s 104 could be not complied with, without recourse or remedy.
5. The applicant submitted that standing and jurisdiction must, if established at time of application initiating the proceedings, persist until the claim for relief is adjudicated to avoid the consequences just described:

"26. For example, it is now settled that section 232 of the SSM Act confers jurisdiction and power on the Tribunal to hear and determine a claim for breach of the statutory duty on an owners corporation in section 106 of the SSMA and, if appropriate, to award damages under subsection 106(5) of the SSM Act (Vickery v The Owners Strata Plan No 80412 [2020] NSWCA 284 at [19] and [26] to [58] per Basten JA and [160] to [169] per White JA.)

27. Lot owners sell their lots for numerous personal reasons including financial hardship which may have been caused by the actions of the Owners Corporation. A claim for damages under s 106(5) is a remedy sought is personally to the lot owner. It would not travel with the lot or vest in the new lot owner. In effect, if the Respondent's construction was accepted, the rights of the lot owner would be lost."

1. I accept in substance the interpretation of SSMA ss 226 and 232 contended for by the applicant and the reasons stated in support of such contention. I do not need to repeat in detail the well-known authorities, cited by the applicant, about the principles governing statutory interpretation: see, for example, Project Blue Sky v ABA (1998) 194 CLR 355, [1998] HCA 28 at [69]- [71], [78]. Applying those, it seems to me that the applicant's interpretation is the correct meaning for the text of ss 226 and 232 in its context and consistent with the purpose of providing relief for historic situations.
2. Further, an application is the document that initiates the proceedings for relief: cp the discussion in Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [37]- [38] where the distinction is drawn between the process ("the proceedings") and the document that by its filing (the application or notice of appeal) begins the process. It is the relief sought that continues (in original or permitted amended form) to the time of final determination. The distinction that is drawn between amendments which are and are not permitted retroactive operation to time of filing the originating process emphasises the singularity of the initiating act being the filing of the application or other initiating process: cp Civil Procedure Act 2005 (NSW) ss 64-65.
3. There is no apparent benefit from denying redress for historic situations after a lot owner sells. Absent express disentitlement, an accrued right should not be removed by such a change of circumstance.
4. While SSMA s 84(1) with s 145(2) recognises that levies are not personal to the lot owner at time of levy, unlike damages under s 106(5), any claim for relief from that payment arises from circumstances, as here, that are personal to the claimant seeking relief, even if they may become personal to another (for example, if a new lot owner reimbursed the challenged levies paid by the outgoing lot owner and then sought to recoup those levies).
5. The authority relied on by the OC addresses a different circumstance, which removes its utility; in addition, there is the need for care in applying principles from other contexts to the interpretation of the text of a particular statute.
6. Thus, in ACN 004 410 833 Ltd (formerly Arrium Limited) (in liq) & Ors [2023] NSWSC 461 at [197], the contractual rights as a creditor that were sought to be exercised by an assignee had been subsumed into a proof and administration right under a deed of company administration before the alleged assignment and had been satisfied within that process. To apply that authority to determine the statutory meaning presently in contest would be a bootstraps argument as follows: because the statutory right had disappeared on sale of the lot, it ought to be characterised as having disappeared under and by force of the relevant legislative provisions.
7. Leue v Reynolds (1986) 4 NSWLR 590 at 596-598 concerned differently-worded family provision legislation which was held to require an application to be supported only at and by time of order for provision by a grant of administration. By contrast, the relevant SSMA provision focuses ("may, on application by an interested person") on the status of the applicant at the time of application.
8. Owners SP 70871 v Turek [2020] NSWSC 1027 at [59] made the conventional point that there must be power to make an order at the time that the order is sought to be made. This again does not assist in determining whether there is jurisdiction and standing to seek the order. In the present context, for the same reasons that the Tribunal's jurisdiction and the applicant's standing are finally determined at the point of application, the Tribunal will have power to make the order sought by the applicant if he succeeds on the merits - the power to make the order is defined at the point of application by an interested person. If a person gains standing during a proceedings (such as, for example, an incoming lot owner) then at and from that point the person can make application and be within the Tribunal's jurisdiction and power to order relief.

Separate question 2: characterisation of order 2 made 29 March 2022

1. Turning to the second separate question, orders 2 and 3 made on 29 March 2022 by consent in SC 22/05057 provided as follows, with the obvious correction to the proceedings year in order 2 (SC20 not SC22):

"2. Pursuant to s 104 of the SSMA, the respondent is to credit the applicant an amount of $3,000 in respect of the costs and expenses levied against the applicant in the related proceedings, SC 20/41055.

3. Pursuant to s 104 of the SSMA. the Tribunal notes the agreement between the parties that the respondent will not levy the applicant for any of its costs or expenses incurred in either of the proceedings SC 22/41055 or these proceedings."

1. Both SC 20/41055 and SC 22/05057 were between the same parties and related to remedial works and associated relief for water ingress and damage to the applicant's lot. The latter was a renewal of the former.
2. Both consent orders recognise the statutory obligation under SSMA s 104 which operates without need for an order. Both consent orders effectively acknowledge the applicant as the successful party in the two sets of proceedings, which is a statutory ingredient of s 104 (so a notation of that statutory force is sufficient without further order: Owners SP 74698 v Jacinta Investments PL [2021] NSWCATAP 387 at [180]- [208]).
3. I accept the force of the applicant's submission that there would be no need to mention the earlier proceedings SC 20/41055 in the notation in consent order 3 if consent order 2 was (I add without any express indication or formality to that effect) a final resolution of the statutory obligation in respect of those earlier proceedings.
4. Rather, interpreting the consent orders in accord with well-known principles, in context of the consent orders as a whole - which have the overall quality of managing implementation of the earlier orders which were the foundation for the renewal application - consent order 2 has the quality of being an interim solution pending further investigation. The present proceedings constitute, in the apparent absence of consent resolution, that investigation. The applicant acknowledged receipt of the $3,000 on 5 April 2022.
5. It follows that I do not accept the OC's submission that consent order 2 operates as res judicata on the levies relating to costs and expenses of the OC in SC 22/41055. That would be contrary to the interpretation principles just mentioned.

1. With both questions answered in favour of the applicant, the current proceedings will need to have their remaining aspects determined if they cannot be resolved by appropriate co-operative inquiry and agreement between the parties. Those remaining aspects are the sufficiency of existing production under the summons and, following the finalisation of that issue, the amount of refund to the applicant and any argument on special circumstances justifying an award of costs under s 60 of the Civil and Administrative Tribunal Act 2013 (NCAT Act).
2. Accordingly, after a short interval to see if the parties can sensibly resolve the question of any remaining production under the summons and perhaps agree the other remaining issues, there should be a directions hearing to give a timetable for any further evidence and submissions and to determine whether the remaining issues can be determined on the papers or require a further hearing. I consider that I am part-heard in the overall proceedings.

(1) Determine the separate questions in order 5 made 21 February 2025 as follows:

Question 1: Does the Tribunal have jurisdiction to hear the application? Answer: yes, by reason of the applicant's continuing standing since he was a lot owner at time of filing the application.

Question 2: What is the correct characterisation of order 2 made on 29 March 2022 in renewal proceedings SC 22/05057?

Answer: Order 2 recognises a credit of $3,000 against the amount found by the Tribunal as owing to the applicant under the agreement noted pursuant to s 104 of the Strata Schemes Management Act 2015 (NSW) order 3 made on 29 March 2022 in renewal proceedings SC 22/05057.

(2) Adjourn the proceedings part-heard before me for a remote access directions hearing (estimate 45 minutes), unless the proceedings are earlier resolved, to a date after 25 July 2025, at which directions hearing the parties are to address the making of orders which deal with the following (to the extent not already resolved): any further production under the outstanding summons issued on 4 February 2025 to the OC and any argument concerning the summons (which should be ready to be argued and determined at the directions hearing); directions for further evidence and submissions to prepare the remaining issues for final hearing; the estimated length of any hearing; whether the remaining issues can be determined on the papers; any challenge to the order on costs in order 3.

(3) Reserve the costs of the preparation for and determination of the separate question.

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.