Bawa v The Owners-Strata Plan No 72125

1. The appellant is the owner of lot 9 in a strata scheme in Sydney. The respondent is the owner's corporation (OC) in that scheme.
2. The appellant appeals from a decision which dismissed his application in the Tribunal in which he sought a variety of orders concerning unpaid contributions. He was also ordered to pay the OC's costs of those proceedings. He also appeals from that costs order.
3. The decision was made on 8 August 2024 and oral reasons were given for the decision. The appellant lodged his appeal on 6 September 2024 before he had received written reasons for decision. He requested written reasons. These were provided on 13 November 2024.
4. At the conclusion of the hearing of the appeal on 29 November 2024 we made directions for the provision of further written submissions, including submissions in relation to the merits of the appellant's claims in the Tribunal. We did this after raising at the hearing of the appeal an issue concerning the adequacy of the reasons and the respondent's submission that the appeal should be dismissed even if we were to find that the Tribunal's reasons for decision were inadequate.
5. Subsequently, the respondent lodged further written submissions on 20 December 2024 and 31 January 2025 and the appellant lodged further written submissions on 21 January 2025.
6. For the reasons set out below we have decided that the appeal should be allowed in respect of the costs order but otherwise leave to appeal should be refused and the appeal should be dismissed. We have also decided that we should ourselves determine the respondent's application that the appellant pay its costs of the primary proceedings rather than remit that application to the Tribunal for redetermination. We will make directions for the provision of written submissions in respect of that costs' application, as well as the respondent's application that the appellant should pay its costs of the appeal.

1. Since 2020 there have been disputes between the parties arising from the contributions levied against the appellant. This led to an earlier set of proceedings between the parties in both the Local Court of New South Wales and the Tribunal in 2021 and 2022.
2. The earlier Tribunal proceedings were dismissed by Member Ringrose on 11 July 2022. In that claim the appellant sought relief under the Strata Schemes Management Act 2015 (NSW) (SSM), including relief under ss 85 and 87 of that Act. There was no appeal from that decision.
3. On 13 October 2022 the appellant paid a judgement debt obtained against him by the OC in the Local Court in respect of arrears of charges.
4. On 8 January 2024 the appellant commenced the proceedings the subject of this appeal. The application included the following statement signed by the appellant concerning the nature of and reasons for his claim:

Section 85 - an order to prevent owners corporation charging interest for late payment of contribution, I never agreed to pay any interest or late fee or any legal fee, I only agreed to pay the levy and currently I am paying $100 per month or $300.00 each quarter. I am only owing $200 for each quarter.

Section 87- an order to alter the amount of contributions, or manner of payment of contributions, I am looking to get the order from NCAT to reopen my previous case to appeal to get all my claims and all the costs including compensation.

Section 238 - an order to remove the Strata Manager because he is misleading me and continually harassing me while I am making payment $300.00 quarterly, I already informed the strata about my situation but they refused to answer my emails and sending this matter to Caitlin Anderson lawyer and harassing me. I am affected medically and financially.

Section 187 (1) (d) an order to compensate me the maximum claim to cover all my costs including the previous expenditures and the future expenditures because I am going to nominate a Solicitor to deal with this matter.

I am continually affected by this strata because they breached all the information what we originally discussed and proposed. I am paying $300.00 quarterly based on our original discussion because we are affected by COVID 19 and lost my job and we are now affected by inflation and cost of living and struggling to survive but I am making my payment whatever we originally discussed but the strata breached everything and harassing and threatening us in unhuman way and it is affecting our medical condition. The strata lawyer did not close my file in the court and using it on knife edge that is unfair but the Caitlin Anderson lawyer agreed to close this file last time but they failed to do that, therefore I wanted to reopen my previous claims in order to make an appeal because the previous member made big error on the order. I have all valid evidences to win this matter. Please note, I will provide further information soon....

1. On 1 February 2024 the OC commenced proceedings in the Local Court claiming an amount of $5908.23, including interest and solicitor's fees.
2. The Tribunal's written reasons of 13 November 2024 referred to bundles lodged by the appellant on 24 June 2024 marked as Exhibit A1, as well as further pages marked as Exhibit A2 and that at the hearing the appellant gave sworn evidence verifying the matters alleged in his letter of 19 June 2024 contained in Exhibit A1. We were not supplied with the letter of 19 June 2024, these exhibits or a transcript of the appellant's testimony.
3. The written reasons also referred to a bundle of documents lodged by the respondent on 30 May 2024 which included a written outline of submissions and a witness statement of Mr Germanos, dated 30 May 2024. We were supplied with this outline of submissions and the witness statement of Mr Germanos to which 144 pages were annexed. Mr Germanos referred to 9 items of evidence that had been served by the appellant. Only the following 4 items, potentially, could be regarded as evidentiary material in support of the appellant's factual allegations in support of the relief he sought, namely:

(1) the application commencing the proceedings which contained the signed statement from the appellant.

(2) 3 emails dated 29 December 2022, 22 August 2023 and 23 November 2023, respectively.

1. Section 85 of the SSM provides:

85 Interest, discounts on contributions and payment plans

(1) A contribution, if not paid when it becomes due and payable, bears until paid simple interest at an annual rate of 10% or, if the regulations provide for another rate, that other rate.

(2) Interest is not payable if the contribution is paid not later than one month after it becomes due and payable.

(3) However, an owners corporation may by resolution determine (either generally or in a particular case) that a contribution is to bear no interest.

(4) An owners corporation may, by resolution at a general meeting, determine (either generally or in a particular case) that a person may pay 10% less of a contribution levied if the person pays the contribution before the date on which it becomes due and payable.

(5) An owners corporation may, by resolution at a general meeting, agree to enter into payment plans, either generally or in particular cases, for the payment of overdue contributions. A payment plan is to be limited to a period of 12 months but a further plan may be agreed to by the owners corporation by resolution.

(6) The regulations may prescribe requirements for payment plans.

(7) The existence of a payment plan does not limit any right of the owners corporation to take action to recover the amount of unpaid contributions.

(8) The Tribunal or a court may, on application by an owner, order that no interest is chargeable on a specified contribution if the Tribunal or the court is satisfied that the owners corporation should reasonably have made a determination not to charge interest for the late contribution.

1. Section 87 of the SSMA provides:

87 Orders varying contributions or payment methods

(1) The Tribunal may, on application, make either or both of the following orders if the Tribunal considers that any amount levied or proposed to be levied by way of contributions is inadequate or excessive or that the manner of payment of contributions is unreasonable -

(a) an order for payment of contributions of a different amount,

(b) an order for payment of contributions in a different manner.

(2) An application for an order may be made by the lessor of a leasehold strata scheme, an owners corporation, an owner or a mortgagee in possession.

1. Section 187 (1) provides:

187 Order confirming information for strata roll

The Tribunal may, on application by an owners corporation, owner or other person having or acquiring an estate or interest in a lot in a strata scheme, order an owners corporation to enter information contained in a strata interest notice in the strata roll if a person fails to provide the required written confirmation of the notice.

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.

(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

(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.

238 Orders relating to strata committee and officers

(1) The Tribunal may, on its own motion or on application by an interested person, make any of the following orders -

(a) an order removing a person from a strata committee,

(b) an order prohibiting a strata committee from determining a specified matter and requiring the matter to be determined by resolution of the owners corporation,

(c) an order removing one or more of the officers of an owners corporation from office and from the strata committee.

(2) Without limiting the grounds on which the Tribunal may order the removal from office of a person, the Tribunal may remove a person if it is satisfied that the person has -

(a) failed to comply with this Act or the regulations or the by-laws of the strata scheme, or

(b) failed to exercise due care and diligence, or engaged in serious misconduct, while holding the office.

1. The written reasons deal, in turn, with the claims under ss 85, 87, 237 (rather than s 238 as explained below) and 187 (1) (d) of the SSMA.
2. As to the claim under s 85 in respect of interest, the Tribunal's reasons for rejecting the claim included:

(1) There was no evidence to demonstrate that the OC had made any resolution that the appellant's contribution bear no interest.

(2) There was no evidence to demonstrate that the OC had made any resolution to enter into a payment plan with the applicant.

(3) There was no evidence that the OC had had any proposal presented to it for the purpose of making resolutions referred to in (1) and (2).

15 The burden of proof under s 85 (8) sits on the applicant. He has not satisfied me that the owners corporation should, in his particular case, reasonably have made a determination not to charge interest for his late contributions. I adopt the written reasons set out by Mr Radman on this particular section. I am not satisfied that the grounds exist in the materials put to the Tribunal for the Tribunal to make an order, therefore I decline to make an order under section 85.

1. As to the claim under s 87 in respect of contributions, the Tribunal's reasons for rejecting the claim were that the provision addresses the contributions that are payable by the owners as a group whereas the order sought by the appellant sought an order that affected only his contributions. For this reason, the Tribunal considered that the appellant's application misconstrued the wording and intent of the section. The Tribunal added that it adopted the written submissions provided by Mr Radman in respect of this section (at [18]).
2. As to the claim under s 238, the Tribunal treated this as a claim for removal of the strata manager under s 237. Presumably, it did so because s 238 is concerned only with removal of a member of the Strata Committee and it was uncontroversial that the strata manager was not a member of that committee.
3. The Tribunal's reasons were that a decision to remove a strata manager was one that was not to be taken lightly and:

21 The applicant seeks the removal on the basis that the strata manager has failed to deal with matters identified in paragraphs 1 to 13 of his written submissions; has misled the applicant; has continually harassed him and has damaged his reputation while the applicant has been making instalment payments. The applicant does not proffer the name of any person he suggests should be appointed as strata manager. The applicant also does not come with the consent in writing of any person he proposes to be appointed as strata manager by the Tribunal. He merely asked that the Tribunal remove the strata manager.

22 Again, I have read and I agree with the detailed submissions made by Mr Radman in respect of his application. Again, I consider the application to be misconceived and I decline to make the orders sought.

1. As to the claim under s 187 (1) (d) for an order for compensation, the Tribunal rejected this claim because that section has nothing to do with compensation -it is concerned with the entry of information into the strata roll. The Tribunal added that it otherwise adopted the submissions by Mr Radman on this subject.
2. In conclusion, the Tribunal said (at [26]) that it was satisfied it had jurisdiction under the SSM to consider the applications made under ss 85, 87 and 237. However, it said that "for the reasons that I have identified above, the applicant has not demonstrated to the Tribunal that there are adequate grounds for the Tribunal to make those orders on this occasion."
3. As to the question of costs, the Tribunal identified that special circumstances were required to make such an order, as provided for in s 60 of the NCAT Act. It also identified that s 60 (3) (g) showed that the factors the Tribunal may consider are not closed.
4. The Tribunal then reasoned as follows:

32 The respondent draws the Tribunal's attention to the decision of Member Ringrose in previous proceedings between these parties, heard on 30 November 2021 and decided on 11 July 2022. That decision concerns a surprisingly similar application made by the applicant in July 2021, seeking orders under section 85 and 87 of the SSM Act on a similar basis - that is, to prevent the owners corporation charging interest for late payment and ordering the amount of contributions or the manner of payment of contributions to be made by the applicant.

33 The applicant has identified that he is unable to bear a costs order, but that is not a factor that weighs in determining whether or not, as a matter of principle, the respondent should be entitled to compensation by way of a costs order.

34 Having regard to the applicant's application and the materials filed by both parties, I'm satisfied that, as it was in the hearing before Member Ringrose, the claims made by the applicant in these proceedings had a very low strength and very low prospects of success. I'm also satisfied that the proceedings were, as I've indicated earlier misconceived in relation to the Tribunal's powers under sections 85, 87 and 237, as well as the section "187 (1) (d)" that was referred to.

33 In the circumstances of this case, including the fact that there have been previous Local Court debt recovery claims and previous applications of similar effect before the Tribunal that were not successful, I am satisfied that there are special circumstances that warrant an award of costs in these proceedings. I therefore consider it is appropriate to make an order for the applicant to be (sic) the respondent's costs as agreed or assessed, and I will make a costs order in the matter accordingly.

(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,

(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.

1. Under s 80 of the NCAT Act, a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, as this is, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the NCAT Act on the basis that:

.....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. Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion concerning the grant of leave which it will ordinarily only exercise in the circumstances described in Collins v Urban [2014] NSWCATAP 17 at [84 (2)], namely.

Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

2 questions of public importance or matters of administration or policy which might have general application; or

3 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;

4 a factual error that was unreasonably arrived at and clearly mistaken; or

5 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. The appellant lodged a Notice of Appeal on 6 September 2024 (lodged before the provision of written reasons) and a written submission (11 pages, plus annexures) lodged on 25 November 2024, which was prepared in light of the written reasons for the decision. Earlier, on 30 October 2024 the appellant had lodged a written submission. This included reference to the fact that the appellant was still waiting to receive the written reasons. At the hearing of the appeal the appellant informed us that the submissions lodged on 30 October 2024 were overtaken by those lodged on 25 November 2024.
2. The following grounds of appeal emerge from this documentary material from the appellant:

(1) The Tribunal was biased (Ground 1). This raised a question of law.

(2) The Tribunal failed to consider the evidence and submissions presented by the appellant (Ground 2). This raised a question of law.

(3) There was procedural unfairness in making the decision (Ground 3). Potentially, this raised a question of law.

(4) The Tribunal misunderstood s 85 and s 87 of the SSM (Ground 4).This raised a question of law.

(5) The Tribunal erred in finding that there were special circumstances warranting an order that the appellant pay the respondent's costs of the proceedings (Ground 5). Potentially, this raised a question of law

(6) The decision was against the weight of the evidence (Ground 6). This did not raise a question of law. The appellant required leave in respect of this ground.

(7) There was new evidence that the appellant wished to rely upon (Ground 7). This did not raise a question of law. The appellant required leave in respect of this contention.

(8) The Tribunal erred by failing to make an order under clause 10 (2) of Schedule 4 of the NCAT Act (Ground 8). Potentially, this raised a question of law.

1. We were not supplied with a transcript of the hearing in the primary proceedings. According to directions made for the conduct of the appeal on 9 October 2024, a party was to provide a typed transcript of the relevant parts of the hearing, together with a sound recording, if what happened at the hearing was being relied upon.

1. A contention of bias appears in the Notice of Appeal. The appellant's submissions lodged on 25 November 2024 include "the Member did not follow the natural justice under section 75 (v) of the Constitution law/common law that is unfair and that was biased" and that "the Tribunal refused to provide me justice in the member failed to maintain natural justice under section 75 (v) of the Constitution law that is unfair and that was biased to the Appellant because the Appellant was affected by Covid 19 loss of job and current inflation and facing severe financial hardship but the member did not consider any of the Appellant's financial situation.".
2. The appellant's written submissions also contain general assertions that the Tribunal was supporting the respondent's lawyer throughout the hearing, the Tribunal refused to provide the appellant with justice, the Tribunal "frustrated the appellant and did not provide fair procedure" and the Tribunal "repeatedly mentioned with angry face to the Appellant that the Appellant should agree with Respondent's Lawyer otherwise he will dismiss the appellant's application, finally the member used his immunity and he dismissed the application", and "the member got angry with the appellant and member stressed the Appellant and asked vigorous question after the vigorous question the Appellant was very stressed and could not focus on the hearing".
3. The contention of bias was not specified in any detail, nor was it supported by reference to any particular parts of the hearing accompanied by relevant transcript passages.
4. As to actual bias, it is well established that such an allegation must be distinctly made and clearly proved with cogent evidence. The relevant question, potentially, in issue is whether the Tribunal embarked upon the hearing of the appeal with a closed mind against the respondent in respect of which it was not open to persuasion; see at - ; at - .

Ground 2-consideration (alleged failure to consider the appellant's evidence and submissions)

1. The appellant's argument in respect of Ground 2 did not specify what evidence and submissions the Tribunal allegedly failed to consider in respect of the particular claims for relief that he sought under ss 85, 87, 238 and 187 of the SSM.
2. As expanded upon below, we also note that such evidentiary material presented by the appellant in the primary proceedings that we have seen was either at a high level of generality or was ultimately of no relevance given the opinions the Tribunal expressed about the meaning and application of ss 85, 87, 238 and 187 of the SSM.
3. As to the latter, one example is the appellant's complaint that the Tribunal was not interested to hear from him about the incorrectness of the OC's invoice for the amount of $5908.23 for reasons unrelated to claims under s 85 (8) and s 87 (1).
4. Also, it appears from the appellant's written submissions on appeal that he viewed the proceedings as a process to verify what was the correct amount owing by him to the OC regardless of the framing of his claim by reference to s 85 and s 87. In this regard, the appellant misunderstood the nature and scope of his proceedings.
5. From the appellant's written submissions, it also appears that the appellant raised a number of matters with the Tribunal that were of no relevance to the subject matter of the proceedings. One of these matters was his complaint about the respondent having legal representation. Related to this was a reference in the appellant's submission to: "[the appellant] repeatedly request to have hearing with Strata Manager only because this matter is about levy arrears only not a criminal matter, otherwise the Respondent's lawyer will get advantage and when Appellant lose this case the Respondent may ask their cost that is why the Appellant disagreed with Respondent lawyer".

1. The appellant was not specific about his contention of procedural unfairness and he did not provide evidentiary support with any transcript passages of the hearing.
2. It seems that an important part of his complaint was the unequal position he said he found himself in because the respondent had legal representation and he did not. However, as we have already pointed out, this was the subject of an earlier interlocutory decision allowing legal representation for both parties.
3. Another matter that the appellant refers to is language difficulties that he says he experienced, particularly with technical legal language. However, he does not point to any specific matter or any issue he raised about this at the hearing. We also note that when asked in his application document dated 8 January 2024 whether he needed an interpreter for the hearing he answered that he did not.
4. Other elements of this ground of appeal would appear to be the matters we have referred to above concerning bias and an alleged failure to consider the appellant's evidence and submissions. We have already addressed those contentions.
5. Accordingly, we do not accept Ground 3.

Ground 4 - consideration (the meaning and application of ss 85 and 87 of the SSM)

1. The appellant did not identify or provide submissions supporting his contentions in respect of any alleged specific error that the Tribunal made in its interpretation of s 85. We can discern no such error.
2. As to s 87 (1), it seems implicit in the appellant's submissions that he contends that the Tribunal made an error of law in concluding that the relevant power under s 87 only applied to the amount of the total contributions the subject of the levies to each of the owners calculated by reference to the unit entitlements.
3. In our opinion, the Tribunal was correct about this.
4. The provision must be interpreted according to the language used in context, its purpose and effect: Project Blue Sky Inc v The Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]. The starting point is the text of the statute whilst, at the same time regard is to be had to its context and purpose; SZATL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJ are 936 at [14] and [37]-[39].
5. In the context of Division 2 of Part 5 of the SSM, sections 79 to 81 reveal that the OC is to set "contributions" by reference to estimates of "contributions" to the administrative and capital works funds. There is then provision for an individual contribution to be but only in the specific event concerning insurance costs, as provided for in Then the OC levies a contribution from each owner "in shares proportional to the unit entitlements of their respective lots" This is the only mechanism for determining the amount of each owner's contribution.

Ground 5 (challenge to costs order made against the appellant)

1. The appellant devoted a considerable part of his written submissions to challenging the order that he pay the respondent's costs of the proceedings (Order 2). He said he will lose a huge amount of money if this order stands. He submits that there were no special circumstances warranting the costs order, the previous proceedings were different, and this time the respondent sent an invoice for the incorrect amount which the respondent refused to explain and this was why he lodged his application in order to "verify the correct amount". He says that he had opposed legal representation for the respondent, in part, because he was concerned that he may have to bear legal costs. He emphasised that under s 60 (1) of the NCAT Act each party should bear their own costs. He also referred to the guiding principle in s 36 (1) of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues.
2. In his subsequent submissions lodged on 21 January 2025 the appellant contended that the Tribunal erred by relying upon s 60 (3) (g).
3. The respondent submitted that the appellant needed to show that there had been an error of the kind referred to in House v King [1936] 55 CLR 499 in respect of the Tribunal's discretionary decision about costs.
4. The respondent submitted that the Tribunal, correctly, informed itself of the requirements of s 60, including the requirement for special circumstances. It submitted that the Tribunal took account of the decision of Member Ringrose in the earlier proceedings. It submitted that these prior proceedings did involve a "surprisingly similar application" as found by the Tribunal, and that the Tribunal had noted that the proceedings had low strength and low prospects of success, that the application was misconceived and that there had been previous Local Court debt recovery claims and previous applications of similar effect before the Tribunal that were not successful. The respondent submitted that the appellant had not identified any basis to interfere with the Tribunal's discretionary decision. In particular, the appellant had not identified how the Tribunal acted on a wrong principle, was guided by extraneous or irrelevant facts, mistook the facts, failed to take into account material considerations or came to a decision that was manifestly unreasonable or unjust.

102 Although the respondent's solicitors have made submissions concerning ss 85 and 87 of the Strata Schemes Management Act, those submissions relate to matters which are to be determined in the Local Court. It would be inappropriate in the circumstances for the Tribunal to proffer an opinion on a matter which is to be dealt with in a different jurisdiction. It is noted that Principal Member Rosser made orders that the applicant shall provide submissions detailing why the issues in relation to defences to payments could not and should not be properly dealt with by the Local Court. The applicant has failed to provide such submissions and accordingly, again it would be inappropriate to deal with these issues in the Tribunal.

1. As to the claim in the earlier proceedings under s238, the Tribunal, earlier in its reasons, had stated that it would not deal with the claim for removal of the Strata manager because this claim had only been raised in reply (at [49]).
2. For the purposes of the claim for costs in the primary proceedings, the manner in which the previous Tribunal dealt with the claims under ss 85, 87 and 238 was significant because it demonstrates that there were no conclusions by the earlier Tribunal showing the appellant that his claims under these provisions were either misconceived or confronted fundamental obstacles for the reasons identified by the Tribunal in these proceedings. This is in a context where there is complexity about the provisions which are not easy for a lay person to understand, and there was no suggestion that the appellant fabricated his claim of financial hardship or that he did not have a genuine grievance about the amount he was being charged.
3. In these circumstances, in our opinion, for the Tribunal to give weight to the earlier proceedings and their outcome, but without recognising the manner in which the claims had been disposed of, meant that it allowed itself to be guided by an irrelevant consideration or it mistook the facts in an important respect.
4. Accordingly, in our opinion, the exercise of the discretion miscarried.
5. If we are wrong about the discretion having miscarried in this way, then, in our opinion, the Tribunal's reasons for decision were inadequate because they did not explain why the nature or existence of the earlier proceedings was relevant to the exercise of the discretion (as to inadequacy of reasons see further below).
6. For these reasons, we consider that Ground 5 should be upheld.
7. We also consider that, having determined the other issues raised on appeal, we are in a better position to redetermine the application for costs than a differently constituted Tribunal to which the question of costs could be remitted for redetermination. We are also conscious that the parties have not been provided with a proper opportunity to make submissions upon a fresh determination of the merits of the costs application. Accordingly, we will make directions for provision of written submissions from the parties about this.

Ground 6 - consideration (against the weight of the evidence)

1. As to Ground 6, we fail to see how any of the claims made by the appellant turned upon any real issue about findings of fact. As appears above, the claim under s 87 turned upon the interpretation of s 87 (1). As to the other claims, the documentary evidence relied upon by the appellant was inconsequential and his witness statement evidence (the statement signed in the application), to the extent that it addressed facts, was at such a general level to be of no probative value. We were not supplied with any of the appellant's oral evidence.
2. In Collins v Urban (at [77]), the Appeal Panel said:

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...

1. Having regard to what we have just said in paragraph 78, plainly, this test has not been met.
2. In the Notice of Appeal, in answer to the question in the form as to what evidence the Tribunal should have given more weight to, and why, the following was stated:

The Appellant is victimised by this unfair fee like interest, late fee and legal fee, the Tribunal should consider effect of COVID 19 and lockdown and loss of job and current inflation. Therefore that the Tribunal should consider the Appellant's evidence for the fair outcome for both parties but the Tribunal did not consider Appellant's evidence and information at the hearing.

The Appellant is really facing financial hardship and the Appellant is more stressful now and affecting the Appellant's medical condition day by day due to this unfair order so, the appellant agreed to pay Levy only but the Tribunal did not consider my information that is unfair and unbiased, the Tribunal should consider the above special situation when member making order.

1. These statements in the Notice of Appeal do not amount to or disclose any evidentiary material of probative value.

1. In the section of the Notice of Appeal dealing with leave to appeal on the basis that there was significant new evidence now available, the appellant referred to a new invoice from the Strata manager in the amount of $16,104.44. He also said that he would provide further information once he had received the written reasons.
2. The appellant's submissions lodged on 25 November 2024 referred to the above new amount of $16,104.44 (and attached the "Notice of Levies Due in October 2024" in respect of this amount). Otherwise, the appellant did not specifically direct submissions to an application for leave to appeal on the basis of new evidence, including by specifically identifying the new evidence and presenting argument as to why such evidence was significant and why it was not reasonably available at the time of the hearing.
3. The respondent's submissions dated 25 November 2024 state that 4 items attached to the appellant's submissions of either 29 October 2024 or 22 November 2024 are "fresh evidence". None of these items include the above "Notice of Levies Due in October 2024". The respondent says that even though the appellant has not addressed the requirements in respect of new evidence it does not object to the appellant relying upon these four items of evidence.
4. Even if we proceed on the basis that all of this new evidence may be relied upon on the appeal, we fail to see how any of it is "significant" evidence within the meaning of cl 12 (c) of Schedule 4 of the NCAT Act or that, in any event, it could support a grant of leave to appeal or affect the outcome of the appeal. How this could be the case is not explained by the appellant. We do not accept Ground 7.

Ground 8 - consideration (cl 10 (2) of Schedule 4)

1. Clause 10 (2) of Schedule 4, relevantly, provides:

(1) The Tribunal may exercise the powers conferred by this clause if the Tribunal is of the opinion that a party in any proceedings for the exercise of a Division function is conducting the proceedings in such a way that unreasonably disadvantages another party in the proceedings by any conduct (including by failing to comply with an order or direction of the Tribunal).

(a) if the party causing the disadvantage is the applicant - order that the proceedings (or part of the proceedings) be dismissed or struck out, or

(b) if the party causing the disadvantage is not the applicant -

(i) determine the proceedings (or part of the proceedings) in favour of the applicant and make any appropriate orders, or

(ii) order that the party causing the disadvantage be struck out of the proceedings (or part of the proceedings).

(3) Before making any order under subclause (2) against a party, the Tribunal is to have regard to the following -

(a) the extent to which the party is familiar with the procedures of the Tribunal,

(b) the party's capacity to understand, and act on, a direction of the Tribunal,

(d) whether the party is acting deliberately in failing to comply with the Tribunal's directions.

(4) The provisions of this clause are in addition to, and do not limit, the provisions of section 55 (Dismissal of proceedings) of this Act.

1. The short answers to the appellant's reliance on this provision on appeal are, first, he has not shown by reference to any document or transcript that he ever made an application for an order under cl 10 (2) (b), and secondly, he has not shown how such an application had any realistic possibility of success and, hence, how any failure to deal with such an application could realistically have led to a different outcome in the proceedings.

1. Section 62 (3) of the NCAT Act, relevantly, provides:

62 Tribunal to give notice of decision and provide written reasons on request

(3) A written statement of reasons for the purposes of this section must set out the following -

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal's understanding of the applicable law,

(c) the reasoning processes that lead the Tribunal to the conclusions it made.

1. The adequacy of reasons should be assessed by asking the question whether the reasons provided meet the minimum acceptable standard, having regard to various factors, including the nature of the case, its significance to the parties and that the reasons need not be elaborate: see per Bell JA (as he then was) in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [65]- [77]; Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 at [215]- [230].
2. At the hearing of the appeal we raised with Mr Radman, solicitor, who appeared for the respondent, concerns about the adequacy of the reasons, particularly, the reasons in relation to the claims under s 85, s 237 and the claim for costs. We have already set out the relevant reasons given by the Tribunal in respect of these claims. As to the other claims, the legal flaw in the claims was sufficiently identified and explained and the fact that reference was also made to adopting the written submissions of the respondent in respect of the claims under s 87 and s 187 (1) (d) was immaterial because the core reason had already been explained.
3. The reasoning with respect to the claims under s 85 and s 237 was arguably more problematic. In both cases the reference to adopting the written submissions of the respondent appears to be more central to the decision to reject the claims (see, in particular, at [15] with respect to s 85 and at [22] with respect to s 237).

1. On a number of occasions, in the various written submissions of the appellant he stated that he commenced these proceedings to verify the accuracy of the amount(s) the OC charged him in respect of contributions, legal fees and interest. However, that was not how his application was framed. On the contrary, pursuant to particular powers conferred upon the Tribunal by the SSM, the appellant sought modification of the amounts of contribution and interest charged by the OC pursuant to the powers the OC has under the SSM.
2. Nothing we have said in this decision should be read as expressing our agreement with the amounts charged to the appellant in respect of contributions, legal fees and interest. Nor should anything we have said be read as expressing a view about the ability of the Tribunal to determine a liquidated sum type dispute between the lot owner and the OC about the amounts charged in respect of these items raising issues of entitlement and calculation that involve no questions under s 85 (8) and s 87 (1). Such questions have not been the subject of the claims made in these proceedings.
3. Further, after the program for further submissions had been completed at the end of January 2025, the appellant lodged with the Tribunal a statutory declaration dated 1 March 2025. This declaration concerned new charges that had been levied upon the appellant for contributions, legal fees and interest. Incorrectly, the appellant sought various orders from the Appeal Panel concerning these new charges, including an order that we confirm that the appellant is no longer in arrears. However, complaints and relief sought about these new charges are not the subject of these proceedings, let alone within the scope of this appeal.

1. For the above reasons, we make the following orders;

(1) The appeal is allowed in part.

(2) Order 2 made by the Tribunal on 8 August is set aside.

(3) Within 14 days of the publication of these reasons for decision, the respondent is to lodge and serve written submissions in support of its application for orders that the appellant pay its costs of the primary proceedings and its costs of the appeal.

(4) Within 14 days of service of the submissions referred to in Order 3, the appellant is to lodge and serve written submissions in reply to the appellant's submissions about costs.

(5) Within 7 days of service of the submissions referred to in Order 4, the respondent is to serve any written submissions in reply to the appellant's submissions.

(6) Otherwise, leave to appeal is refused and 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.