Carroll and Ors v The Owners – Strata Plan no 37248

Coscuez International Pty Ltd v The Owners - Strata Plan no 46433 [2022] NSWCATAP 147

Gallo v Dawson [1990] HCA 30; [1990] 93 ALR 479

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

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

Larking v Great Western (Nepean) Gravel Ltd (in liq) [1940] HCA 37; (1940) 64 CLR 221

Macedonian Orthodox Community Church St Petka Inc [2008] HCA 42; (2008) 237 CLR 66

New South Wales Land and Housing Corp v Orr [2019] NSWCA 231; 100 NSWLR 578

Owners Corporation SP 6534 v Elkhouri; Owners Corporation SP 6534 v Perpetual Corporate Trustee Ltd [2024] NSWCA 279

Perpetual Corporate Trust Ltd v Owners Corporation SP 6534; El Khouri v Owners Corporation SP 6534 [2024] NSWSC 173

Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9

Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157

Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204; 106 NSWLR 1

The Owners - Strata Plan no 36613 v Doherty; Doherty v The Owners - Strata Plan no 36613 [2021] NSWCATAP 285

Wardley v WA [1992] HCA 55; (1992) 175 CLR 514

Virginia Louise Hoy Toller (Twenty-Fourth Appellant)

1. The Appellants are lot owners in a strata scheme regulated by the Strata Schemes Management Act 2015 (NSW) (the SSM Act) and the Respondent is the Owners Corporation.
2. The Appellants lodged an application in the Consumer and Commercial Division of the Tribunal on 16 November 2022 in which they sought an order that a common property by-law be repealed. In the alternative, they sought an order from the Tribunal that the relevant common property by-law be amended so as to remove the requirement for the Applicants to make a contribution to a special fund to finance the maintenance by the Respondent of the exclusive use areas referred to in the relevant by-law.
3. The statutory background within the SSM Act is relevantly dealt with in ss 142, 143, 144, 145 and 149.Those sections provide:

142 Common property rights by-law

For the purposes of this Act, a

"common property rights by-law" is a by-law that confers on the owner or owners of a specified lot or lots in the strata scheme--

(a) a right of exclusive use and enjoyment of the whole or any specified part of the common property, or

(b) special privileges in respect of the whole or any specified part of the common property (including, for example, a licence to use the whole or any specified part of the common property in a particular manner or for particular purposes),

or that changes such a by-law.

143 Requirements and effect of common property rights by-laws

(1) An owners corporation may make a common property rights by-law only with the written consent of each owner on whom the by-law confers rights or special privileges.

Note : Any addition to the by-laws will require a special resolution (see section 141).

(2) A common property rights by-law may confer rights or special privileges subject to conditions specified in the by-law (such as a condition requiring the payment of money by the owner or owners concerned, at specified times or as determined by the owners corporation).

(3) A common property rights by-law may be made even though the person on whom the right of exclusive use and enjoyment or the special privileges are to be conferred had that exclusive use or enjoyment or enjoyed those special privileges before the making of the by-law.

(4) After 2 years from the making, or purported making, of a common property rights by-law, it is conclusively presumed that all conditions and preliminary steps precedent to the making of the by-law were complied with and performed.

144 Common property rights by-law must provide for maintenance of property

(1) A common property rights by-law must--

(a) provide that the owners corporation is to continue to be responsible for the proper maintenance of, and keeping in a state of good and serviceable repair, the common property or the relevant part of it, or

(b) impose on the owner or owners of the lots the responsibility for that maintenance and upkeep.

(2) Any money payable under a common property rights by-law by more than one owner to the owners corporation or to any person for or towards the maintenance or upkeep of any common property is payable by those owners proportionately according to the relative proportions of their respective unit entitlements of their lots unless the by-law otherwise provides.

(3) To the extent to which a common property rights by-law makes a person directly responsible for the proper maintenance of, and keeping in a state of good and serviceable repair, any common property, it discharges the owners corporation from its obligations to maintain and repair the property under this Act.

145 Common property rights by-law binding on owners for time being

(1) A common property rights by-law, while it remains in force, continues to operate for the benefit of, and is binding on, the owner or owners for the time being of the lot or lots specified in the by-law.

(2) If a person becomes the owner of a lot when, under a by-law or under this subsection, a former owner is liable to pay money to the owners corporation, the person who becomes the owner is jointly and severally liable with the former owner to pay the money to the owners corporation.

(3) Any money payable by an owner to the owners corporation under a common property rights by-law or under subsection (2) may be recovered, as a debt in a court of competent jurisdiction, by the owners corporation.

149 Order with respect to common property rights by-laws

(1) The Tribunal may make an order prescribing a change to a by-law if the Tribunal finds--

(a) on application made by an owner of a lot in a strata scheme, that the owners corporation has unreasonably refused to make a common property rights by-law, or

(b) on application made by an owner or owners corporation, that an owner of a lot, or the lessor of a leasehold strata scheme, has unreasonably refused to consent to the terms of a proposed common property rights by-law, or to the proposed amendment or repeal of a common property rights by-law, or

(c) on application made by any interested person, that the conditions of a common property rights by-law relating to the maintenance or upkeep of any common property are unjust.

(2) In considering whether to make an order, the Tribunal must have regard to--

(a) the interests of all owners in the use and enjoyment of their lots and common property, and

(b) the rights and reasonable expectations of any owner deriving or anticipating a benefit under a common property rights by-law.

(3) The Tribunal must not determine an application by an owner on the ground that the owners corporation has unreasonably refused to make a common property rights by-law by an order prescribing the making of a by-law in terms to which the applicant or, in the case of a leasehold strata scheme, the lessor of the scheme is not prepared to consent.

(4) The Tribunal may determine that an owner has unreasonably refused consent even though the owner already has the exclusive use or privileges that are the subject of the proposed by-law.

(5) An order under this section, when recorded under section 246, has effect as if its terms were a by-law (but subject to any relevant order made by a superior court).

(6) An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order.

1. The Tribunal published its decision on 25 July 2024 and dismissed the Appellants' application. The reason for the dismissal was that the Tribunal found that the application had been commenced outside of the time required by the Civil and Administrative Tribunal Rules, 2014 NSW (the NCAT Rules). The Tribunal considered whether time should be extended but declined to do so.
2. The orders contained in the decision of 25 July 2024 (which we will refer to as the Decision) are the subject of this appeal. The appeal was lodged on 22 August 2020.
3. In order to better understand the issues arising in the appeal, it is necessary to summarise the reasoning and factual findings as recorded in the Decision. This is undertaken in the paragraphs below.

1. The property constituting the Respondent is known as the Lake Crackenback Resort (the Resort). The Resort consists of 189 lots which includes townhouse accommodation, detached buildings and chalets (referred to as the Housing Lots), apartments, commercial premises, Resort facilities (including tennis courts, gymnasium, golf course, spa) and vacant land. The lots are connected by a network of private roads centred around a lake [16].
2. The Resort was developed in stages. The first strata plan was registered on 1 August 1990. Lot 18 in the Respondent was subdivided and became Strata Plan 37429 and that strata plan was registered on 2 August 1990 [17].
3. On 31 August 1990 an exclusive use by-law and a plan showing common property, subject to exclusive use was registered (called the Developer Exclusive Use By-Law). In summary, that by-law provided that the proprietors for the time being of Lots 2 to 17 and 19 to 23 inclusive, shall be jointly entitled to the right of exclusive use and enjoyment of that part of common property designated on the strata plan on the basis that the body corporate shall continue to be responsible for the proper maintenance and keeping it in a state of good and serviceable repair of such part of the common property [23].
4. On 4 February 1991 a resolution was passed to repeal the Developer Exclusive Use By-Law and passing two new by-laws, namely Exclusive Use By-Laws 1 and 2. The new by-laws added the requirement that the proprietors of the relevant lots are to contribute monies by way of levies to a special fund to the body corporate, such fund being adequate to enable the body corporate to undertake those works referred to in the by-laws. The new by-laws (referred to as the Exclusive Use By-Laws) were registered on 14 November 1991 [26] and [27]. They deal with different parts of the common property [20].
5. At [32] the Tribunal found that since 2003 further strata plans of subdivision have been registered and that the lots created by those further strata plans include:

(1) Lots at the end of Rose Creek Road, which are only accessible by a road passing along that part of Rose Creek which forms part of the common property area the subject of part of the Exclusive Use By-Laws.

(2) Lots for which the nearest access to the lake is through or immediately adjacent to part of the common property area covered by the Exclusive Use By-Law.

1. At [38] the Tribunal recorded that the "primary submission" of the Respondent was that the Appellants' application was out of time and should be dismissed and, further, that an application for an extension of time should be refused.
2. At [39] the Tribunal summarised the Respondent's submissions thus:

(1) The application has been brought out of time.

(2) The SSM Act does not provide a period in which s 149(1) applications may be brought, so the time limit in r 23(3)(b) of the NCAT Rules applies. The text of that rule is set out later in this decision.

(3) There may be debate as to whether the right to apply under s 149 arises when the by-law was adopted or when the Applicant becomes aware that the by-law is, or may be, unjust, that issue need not be resolved in this case because one of the Applicants first became alive to the issue in early 2017 and has been organising lot owners to challenge the relevant by-laws since January 2020.

(4) The Applicants were therefore aware of the issue concerning the Exclusive Use By-Law for at least nearly 2 years before the application was filed on 16 November 2022.

1. From [41] the Tribunal summarised the submissions of the Applicants in response to those of the Respondent. We will refer to those submissions to the extent necessary later.
2. The Tribunal's consideration of the submissions of the parties commences at [49]. The Tribunal noted that the SSM Act and the Strata Schemes Management Regulation 2016 (NSW) ("Strata Regulation") are silent as to when applications under s 149(1) may be filed. The Tribunal then referred to r 23(3) of the NCAT Rules which provides:

(3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made--

(a) in the case where enabling legislation specifies the period within which the application is to be made--within the period specified, or

(b) in any other case--within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application.

1. At [53] the Tribunal stated that it found the Respondent's submissions to be "clearly correct" and rejected the Applicants' submissions which relied upon the decision of the Appeal Panel in The Owners - Strata Plan no 36613 v Doherty; Doherty v The Owners - Strata Plan no 36613 [2021] NSWCATAP 285. There, the Appeal Panel held that where there is reliance upon a "continuous state of affairs", r 23(3)(b) does not restrict the time for making an application.
2. At [54] and [55] the Tribunal considered but rejected the Appellants' submissions arising out of the Appeal Panel decision in case in Coscuez International Pty Ltd v The Owners - Strata Plan no 46433 [2022] NSWCATAP 147 which was said by the Appellants to be authority for the view that if it is necessary to identify a particular time at which the Applicants became entitled to make the application, that time is the date in which mediation in the matter occurred. In this case mediation occurred on 14 December 2021 and the application (as stated earlier) was filed 11 months later.
3. At [58] the Tribunal expressed surprise that the Respondent had not focused on the words of s 149(1)(c), "namely, when the conditions of a common property rights by-law relating to the maintenance or upkeep of any common property are unjust". The Tribunal stated that it appeared that the submissions focused on the terms of the Exclusive Use By-Laws. The Tribunal then stated that "perhaps nothing turns on this."
4. At [60] the Tribunal stated that as submitted by the Respondent the issue of when the right to apply under s 149(1) arises does not need to be resolved because one of the Applicants, Mr Blondel, gave evidence that he first became "alive to the issue in early 2017 and that he has been organising apartment owners to challenge the by-laws since January 2020."
5. We interpose here to make the comment that Mr Blondel's name does not appear on the list of Appellants whereas he is listed as the Thirty-First Applicant. It may be necessary to include a direction to clarify his position. We also interpose here to say that we assume that the issue to which Mr Blondel became alive in 2017 was the issue that the relevant by-law was thought by the Applicants to be unjust. The reason the by-law was considered to be unjust is stated at [62], namely that the Applicants, although entitled to enjoy the benefit of the by-laws, were paying levies in circumstances where anyone could use the common property and therefore the exclusivity promised by the by-laws had ceased.
6. From [63] the Tribunal set out steps taken by Mr Blondel to attract the interest of other lot owners in the exclusive use by-laws and to obtain legal advice. That paragraph deals with steps taken between 2017 through to December 2021 when a mediation occurred following lodgment of a mediation application with NSW Fair Trading.
7. At [64] the Tribunal found that Mr Blondel's role was "concerned about the Exclusive Use By-Laws, at least since 2017 and most likely earlier". With respect to the other Applicants the Tribunal found at [65] that all were on notice about the issues relating to the Exclusive Use By-Laws by reasons of a letter sent by Mr Blondel dated January 2020. Significant portions of that letter are set out in the Decision and a portion of the letter states words to the effect that if the Strata Committee continues "at best, to defer, or at worst, to ignore the concerns being raised that affect a significant number of owners, applications and other actions will be made for appropriate orders with the NSW Civil and Administrative Tribunal (NCAT)."
8. At [67] that the Tribunal stated:

"Doing the best I can to answer the question when were the conditions of a(sic) Exclusive Use By-Laws relating to the maintenance or upkeep of any common property unjust, in my view, this should be answered, on the evidence before me, at least in relation to the lead applicant [Mr Blondel], as 2017".

1. In relation to the other Applicants the Tribunal found that the relevant date is January 2020 but in the cases of some Applicants possibly earlier. The Tribunal noted that the application was not filed with the Tribunal until almost three years after January 2020.
2. At [68] the Tribunal implicitly found that r 23(3)(b) applied to the application and that the application had been filed out of the time required by that rule. The Tribunal thereafter considered whether time should be extended by reference to s 41 of the NCAT Act and to the principles concerning extending time as set out by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22.
3. At [71] the Tribunal found that as Mr Blondel became aware of the issues in 2017, the delay to November 2022 to be considerable. The Tribunal found that the other Applicants became aware of the issues no later than January 2020 and that the delay did not favour an extension of time.
4. Thereafter, the Tribunal considered the reasons for the delay and whether the Applicant had a fairly arguable case.
5. At [82] the Tribunal stated that there had been considerable delay and that the Tribunal declined to extend the time for filing the application. The Tribunal did not appear to specifically address whether the reasons for delay were supportive of the extension of time. The Tribunal did find that the Applicants had an arguable case favouring an extension of time [78]. However, the Tribunal declined to state "any preliminary views about the outcome of the application" because, as stated at [84] to do so would have led to further delay in the delivery of the Tribunal reasons and also because if an appeal from the Tribunal's reasons is upheld, it would be consistent with the guiding principles set out s 36(1) of the NCAT Act for the same member to hear and determine the matter. The Tribunal concluded by stating that the Applicants "have an arguable case" [78].
6. At [82] the Tribunal declined to extend the time "particularly given" the "considerable delay".

1. The Appellants lodged a Notice of Appeal on 22 August 2024, in which the Appellants set out the following grounds of appeal.

1. The Tribunal erred as a matter of law in finding that, by operation of r 23(3)(b) of the Rules the Appellants required an extension of time to bring the application in circumstances where:

(1) The application was made pursuant to s 149(1)(c) of the SSM Act.

(2) The SSM Act contains no time limit for the making of an application pursuant to s 149(1)(c).

(3) It is implicit in s 149(1)(c) that an Applicant is continuously entitled to make an application pursuant to that section, while the unjustness of the conditions of a common property rights By-Law persists.

(4) The Tribunal's conclusion was contrary to the reasoning of the Appeal Panel in the Doherty decision (cited earlier) and the Coscuez decision (also cited earlier).

1. The Tribunal erred as a matter of law in making findings of fact which were unsupported by evidence in that it found at [67] that "all other Applicants"

became aware of the unjustness of the exclusive use by-laws in January 2020 in circumstances where:

(1) It was common ground that one of the Applicants, Mr Jonathon Davies, only acquired his lot on 23 July 2020.

(2) There was no evidence that all of the other Applicants had become aware of the factual matters giving rise to the unfairness of the Exclusive Use By-Laws in January 2020.

(3) The Tribunal made no findings as to when the circumstances giving rise to the unfairness or potential unfairness of the conditions of the Exclusive Use By-Laws arose.

1. The Tribunal erred as a matter of law in failing to give adequate reasons for the finding at [67] of its reasons that "all other Applicants" became in aware of the unjustness of the Exclusive Use By-Laws in January 2020 in the circumstances stated above.

1. The Tribunal erred as a matter of law in that it identified the wrong issue or asked the wrong question at [64]-[67] in that it considered when the Appellant's entitlement to make an application pursuant to s 149(1)(c) of the SSM Act arose by reference to the Appellants' subjective state of mind (being when the Appellants became "concerned" about the Exclusive Use By-Laws), not by reference to when the conditions of the Exclusive Use By-Laws in fact became unjust or when the Appellants became aware of the factual circumstances relied upon in their application.

1. The Tribunal's exercise of discretion miscarried in refusing to grant an extension of time to bring the application (to the extent an extension of time was required) in that:

(1) The Tribunal at [71] mistook the facts as to:

(a) when the alleged unfairness of the conditions of the exclusive use by-laws arose; and

(b) when the Appellants became aware of those facts (including in light of the matters set out in ground 2 above.

(2) The Tribunal did not take into account the material consideration, or acted upon a wrong principle in that, having concluded that the Appellants had an arguable case (at [78]) but that the explanation for delay was less than satisfactory (at [74]), the Tribunal failed to consider whether the Applicants' case had more substantial merit than being fairly arguable.

(3) The Tribunal did not take into account a material consideration, or acted upon a wrong principle, in that it accepted that giving a decision on the merits was the better course in the interests of justice (at [80]), but gave that consideration no weight or concluded that it was precluded from giving weight to that consideration (at [80]).

(4) The Tribunal did not take into account a material consideration in that it gave no consideration to whether refusing to grant an extension of time to the Appellants would work an injustice having regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for an extension of time; and/or

(5) The Tribunal's decision was unreasonable in the sense in which that term was employed in House v The King [1936] HCA 40; 55 CLR 499 at 504-505.

(6) Additionally, the Appellants sought leave to appeal in respect of ground 5 submitting that the Appellants have suffered a substantial miscarriage of justice by reason of the Tribunal failing to properly exercise its discretion with respect to the extension of time and of consequently declining to determine the proceedings on the merits. The Decision was both not fair and equitable and against the weight of evidence. The submission was also made that the Exclusive Use By-Laws impose significant costs on the Appellants and if the Decision stands will continue to do so indefinitely without conferring any material benefit on the Appellants. Relevant circumstances included that the Respondent accepted the changes ought to be made to one of the Exclusive Use By-Laws but the Tribunal gave no consideration to those matters. Rather the effect of the Decision was to impose a 28 day time limit on the challenging of Exclusive Use By-Laws which may continue to operate for decades without the Tribunal at any point, correctly identifying the time at which that time limit began to run or considering the injustice which its decision may work upon the Appellants. The Tribunal's decision is not explicable by reference to prejudice to the Respondent Owners Corporation and it was not contended that any prejudice would arise from the grant of an extension of time.

1. The Notice of Appeal sought the following orders:

(1) Leave to appeal be granted, to the extent that leave is required.

(2) The appeal be upheld.

(3) An order setting aside orders 3 and 4 made by the Tribunal.

(4) An order that the time for filing the application be extended to 16 November 2022.

(5) In the alternative to (4) an order that the Appellants' application for an extension of time be remitted to the Tribunal to be determined according to law.

(6) An order that the application filed by the Appellants on 16 November 2022 to be remitted to the Tribunal to be determined according to law.

(7) Costs.

(8) Such further or other orders as the Appeal Panel sees fit.

1. The Respondent filed a Reply to Appeal and, subsequently, in December 2024 filed an Amended Reply to Appeal adding a Notice of Contention.
2. The Reply to Appeal may be summarised as follows:

(1) Ground 1: the Respondent says that the Tribunal correctly construed s149(1)(c) of the SSM Act and r 23(3)(b) of the NCAT Rules.

(2) Ground 2: the Respondent says that there was sufficient evidence for the Tribunal to make the finding at [67] in relation to all Applicants save for Mr Davies. The Respondent also says that it accepts that the Tribunal made an error in relation to Mr Davies but that that error was not material because on the Appellants' own evidence it was clear that Mr Davies was notified of the circumstances forming the subject matter of his application by no later than about August 2020.

(3) Ground 3: the Reply stated that the Respondent says that the Tribunal gave sufficient reasons for its finding at [67] in relation to all Applicants, save for Mr Davies and otherwise repeats its response to ground 2 in relation to Mr Davies.

(4) Ground 4: the Respondent says that the Tribunal applied the correct test or, alternatively, if the Tribunal applied the wrong test, such error does not assist the Appellants because the test applied by the Tribunal was more favourable to them than the test they say ought to have been applied.

(5) Ground 5: the Respondent says that this ground requires leave and that leave should not be granted or, alternatively, if leave is granted, the Respondent says that the Tribunal's exercise of discretion did not miscarry and any errors the Tribunal made were minor and immaterial.

1. Leave to appeal: the Respondent says that the Appellants should not be granted leave to appeal to rely upon ground 5, because the Appellants have not identified any sufficient basis for leave to be granted beyond the contentions that the Tribunal's decision was wrong. In particular the Appellants have not identified any of the considerations in favour of a grant of leave as referred to in Collins v Urban [2014] NSWCATAP 17 at [84].
2. Notice of Contention: the Reply stated that a pre-requisite of any application within the meeting of s 149(c) of the SSM Act is that the "conditions of a common property rights by-law relating to the maintenance or upkeep of any common property are [objectively] unjust". For the purposes of determining when an Applicant "became entitled under the enabling legislation to make the application" (within the meaning of r 23(3) "the relevant date is when the conditions of the common property rights by-law" became "unjust" in regard to that applicant. In addition, the Appellants did not seek to demonstrate, and did not otherwise submit, that the "conditions of the common property rights by-law" became "unjust" in relation to any of the Appellants at any time after January 2020.
3. At the hearing of the appeal , the Appellants Counsel indicated that the filing of the Notice of Contention was not opposed. Accordingly we granted leave for the Respondent to lodge the Notice of Contention.

1. The Appellants lodged their submissions on or about 23 October 2024. This was before the filing of the Amended Reply containing the Notice of Contention. The issues raised in the notice will be dealt with separately. In the following paragraphs we summarise the Appellants' submissions.

1. The Appellants submitted that r 23(3)(b) did not restrict the making of the Appellants' application, as the entitlement to make the application arose from the existence of the Exclusive Use By-Laws, being a continuous state of affairs. The Appellants relied upon the decision in Doherty (cited earlier) where the Appeal Panel observed at [93]-[94]:

[93] The duty to repair common property, with which rights of access and associated liability to remediate damage to lot property were connected, was continuous until repair occurred, with the dispute being over the scope of that duty. The duty to remediate damage to lot property was also continuous in its own right, in that any work order or compensation was remedial for breach of that continuous duty, not a breach of the duty on a single occasion as occurs with some breaches of duty of care causing loss or damage.

[94] Accordingly, the limitation expiry issue that remained pressed for the OC fails.

1. The Appellants submitted that r 23(3)(b) is not a limitation provision. It is a procedural provision made under s 40 of the Civil and Administrative Tribunal Act 2013 NSW (NCAT Act) which provides:

"An application or appeal to the Tribunal is to be made in the time and manner prescribed by enabling legislation or the procedural rules".

1. The Appellants contended that the entitlement to bring an application under s 149(1)(c) does not turn on the occurrence of any event: rather, it depends upon the existence of a state of affairs, being that "the conditions of a common property rights by-law ... are unjust". Whether conditions are unjust is to be determined at the time of the Tribunal's decision. Such an application may be made by "any interested person".
2. The Appellants' submissions state that it is implicit in s 149(1)(c) that an application may be made at any time, on the basis of the existing unjustness of the conditions of a common property rights by-law. For the purposes of s 40 of the NCAT Act, such an application made at any time would be made "in the time and manner prescribed by enabling legislation". The enabling legislation takes precedence over the procedural rules, including r 23(3).
3. The Appellants' submission states that the Appellants' reasoning is consistent with the reasoning in Doherty. Contrary to the Tribunal's reasons, at [47] and [53], there is no relevant distinction to Doherty: both a failure of an owners corporation to repair and maintain and the existence of a common property rights by-law, the conditions of which are unfair, give rise to a statutory power on the part of the Tribunal (under s 232 and s 149(1)(c)) of the SSM Act) to make orders to rectify the state of affairs.
4. The Appellants submitted that the Tribunal's reasons, if correct, would mean that, in any case where an owners corporation failed to comply with its duty to repair and maintain, an owner would be prevented from obtaining relief under s 232 (without first obtaining an extension of time), if the owner had not brought an application within 28 days of the commencement of the breach.
5. The Appellants submitted that, inconsistently with its finding that r 23(3)(b) applied to an application under s 149(1)(c), the Tribunal concluded that an application under s 150 of the SSM Act could be made "at any time" (at [81]). Section 150 provides that the Tribunal may make an order declaring a by-law to be invalid if the Tribunal considers that an owners corporation did not have the power to make the by-law or that the by-law is harsh, unconscionable or oppressive. The SSM Act does not provide a time limit for the bringing of an application under s 150. The Appellants submitted that there is no relevant distinction between the terms of ss 149 and 150.
6. The Appellants' submissions relied upon the judgment of Elkaim AJ in Perpetual Corporate Trust Ltd v Owners Corporation SP 6534; El Khouri v Owners Corporation SP 6534 [2024] NSWSC 173 (Perpetual) where it was held that relief was available under s 149(1)(c) in circumstances where a by-law had been adopted with the consent of the Plaintiff years earlier (at [30], [154]). The Appellants' submissions state that his Honour observed at [30] that s 149 specifically contemplates the Tribunal adjusting a by-law that had been the subject of consent and at [160] his Honour observed that s 149 envisages a change to a by-law implying that part of the by-law may be unjust and susceptible to change. The Appellants' submissions note that whilst no procedural time limit appears to have been argued, his Honour's reasoning is consistent with there being a continuous right to challenge a by-law which contains unfair conditions, even if an owner previously consented to it.
7. The Appellants' submissions note that in Perpetual Capital Elkaim AJ referred to the judgment of the Court of Appeal in Cooper v The Owners - Strata Plan no 58068 [2020] NSWCA 250 (Cooper) as being "instructive". In that case, Basten JA made observations about ss 139 and 150 of the SSM Act. Section 139 concerns restrictions on by-laws and, in the case of s 139(1) provides that a by-law must not be "harsh, unconscionable or oppressive". His Honour said of s 139 that that section focuses on the "character of the particular by-law, rather than the state of knowledge, whether actual or constructive, of any particular lot owner." In that case, Fagan J stated at [100] that ss 139(1) and 150(1) show that the SSM Act significantly qualifies the finality of by-laws that have been adopted or retained by an owners corporation in general meeting. By-laws adopted unanimously or by majority are not inviolate; they are amenable to declaration of invalidity if they infringe a statutorily prescribed standard.
8. The Appellants submitted that s 149(1)(c) is an analogous provision and that the Tribunal fell into error by focusing on the state of knowledge of the particular lot owners, rather than the character of the conditions of the by-law. That caused it to fall into error by concluding that r 23(3)(b) curtailed the ability of a lot owner to challenge the conditions of a by-law which are unfair.
9. The Appellants submitted, in the alternative, that the Tribunal fell into error in rejecting (at [54]-[55]) the reasoning in Coscuez (cited earlier) to the effect that, if it was necessary to identify a particular time at which the Appellants became "entitled under the enabling legislation to make the application", that time was the date of the mediation in the matter.
10. In Coscuez the Appeal Panel stated that it was their preliminary view that for applications where there is no limitation identified in the SSM Act and the applications involve a type of matter where the applications cannot be accepted by the Registrar of the Tribunal without evidence that mediation has occurred or was attempted under s 227(1)(a) or (b) of the SSM Act, or where the Registrar considered that mediation was unnecessary or inappropriate, then the 28 day period would run from the date from when the mediation occurred but was unsuccessful, or where a party refused to mediate or where the Registrar considered that mediation is unnecessary or inappropriate: see s 227(1)(a), (b) or(c).
11. The Appellants submitted that had the Tribunal followed the view expressed in Coscuez, the Appellants would have been required to obtain an extension of time but the delay would have been in the order of 11 months in a period affected by Covid - much less than the period of approximately three years found by the Tribunal at [67].

1. This ground concerns the Tribunal's finding at [67] that "all other applicants" became aware of the unjustness of the Exclusive Use By-Laws in January 2020 in circumstances where:

(1) it was common ground that one of the Applicants, Jonathan Davies, only acquired his lot on 23 July 2020;

(2) there was no evidence that all of the other Applicants had become aware of the factual matters giving rise to the unfairness of the Exclusive Use By-Laws in January 2020; and

(3) the Tribunal made no findings as to when the circumstances giving rise to the unfairness or potential unfairness of the conditions of the Exclusive Use By-Law arose.

1. With respect to Jonathan Davies, the Appellants submitted that the Respondent accepts that the Tribunal made an error. The Respondent submitted in the Reply that the error was not material because it was clear that Mr Davies was notified of the circumstances forming the subject matter of his application no later than about August 2020. The Appellants submitted that it is unclear on what basis that submission was put and the Appellants do not accept it. Further, it cannot be concluded that the difference of at least seven months would not have altered the Tribunal's assessment of whether an extension of time ought to be granted.
2. With respect to the other applicants, the Tribunal found at [65] that all of the Appellants were on notice about issues relating to the Exclusive Use By-Laws by reason of Mr Blondel's letter to them dated January 2020. The Appellants submitted that that finding was incorrect. The evidence of Mr Blondel went no further than that he had sent a letter to lot owners described as the "Apartment Lot Owners" but that that did not establish that those letters had been received by all of the Appellants at that time or that they had read them or understood them. The Appellants further submitted that the letter, while expressing various concerns, did not set out the facts relied upon by the Appellants in relation to the unfairness of the Exclusive Use By-Laws. The Appellants submitted that the letter was incapable of putting the Appellants on notice of those matters. The Appellants' submission was that the Tribunal's finding lacked an evidentiary foundation, such that it fell into an error of law.
3. The Appellants further submitted that, assuming that the Tribunal was correct that r 23(3)(b) applied, the relevant question under s 149(1)(c) would have been when the conditions of the Exclusive Use By-Law became unjust. It is only upon the conditions becoming unjust that the Appellants could have been "entitled" to make an application. An applicant's state of mind is not an element of s 149(1)(c). The Tribunal focused upon whether the Appellants were "put on notice" of issues regarding the Exclusive Use By-Laws but made no findings as to when the unfairness of the conditions of Exclusive Use By-Laws actually arose such that the Appellants could have become aware of those matters. The Appellants' submission was that the Tribunal's findings at [67] lacked a basis in evidence or logic and involved an error of law.

1. The Appellants submitted that in the circumstances identified in relation to ground 2, the Tribunal also failed to give adequate reasons for its finding at [67] that "all other Applicants" became aware of the unjustness of the Exclusive Use By-Laws in January 2020. In the absence of a determination of when the unfairness of the conditions of the Exclusive Use By-Laws arose, the basis for the Tribunal's conclusion was unexplained.

1. In support of this ground the Appellants' submissions state that the Tribunal's reasons do not identify its conclusion as to when the Appellants "became entitled" to bring an application within the meaning of r 23(3). The Tribunal's reasoning indicates that it in fact applied r 23(3)(b) by considering when the "lead Applicant", Mr Blondel "became alive to the issue" of potential unfairness or when he became "concerned about the Exclusive Use By-Laws". With respect to the other Appellants the Tribunal considered that they were on notice about issues relating to the Exclusive Use By-Laws by reason of the letter sent by Mr Blondel to them.
2. The Appellants' submissions state that the state of mind alluded to by the Tribunal has no foundation in s 149(1)(c). The Appellants submitted that on no view could their entitlement to bring an application, for the purposes of our r 23(3)(b), turn on a matter as vague as whether they were "concerned" about the Exclusive Use By-Law. However, that is the manner in which the Tribunal approach the question at [67] of the Decision. The Tribunal appears to have focused on the awareness or knowledge of the Appellants, not whether the conditions of the Exclusive Use By-Laws were actually unjust. However, [67] of the Decision does not identify what it is that the Tribunal considered the Appellants to have been aware of.

1. The Appellants' submission is that the Tribunal's exercise of discretion miscarried in refusing to grant an extension of time to bring the application (to the extent an extension of time was required).
2. The Appellants submitted that the Tribunal mistook the facts as to when the alleged unfairness of the conditions of the Exclusive Use By-Law arose and when the Appellants became aware of those facts: see earlier submissions. This affected a critical integer in the exercise of its discretion, namely the length of the delay.
3. The Appellants further submitted that the Tribunal did not take into account a material consideration, or acted upon a wrong principle in that, having concluded that the Appellants had an arguable case, but that the explanation for delay was less than satisfactory, the Tribunal failed to consider whether the Appellants' case had more substantial merit then merely being fairly arguable. The Tribunal gave no consideration to the merits of the Appellants' case, as relevant to an application for an extension of time, beyond finding that they had an arguable case.
4. Whilst the Tribunal accepted that giving a decision on the merits was the better course in the interests of justice [80] it gave that consideration no weight because the Tribunal stated that it could not "ignore the Respondent's submission on the limitation point, simply because a full hearing has been conducted". The Appellants submitted that the Respondent's point was not a limitation point. It was a procedural point. The discretion to extend time is given for the purpose of enabling the Tribunal to do justice between the parties: Chen v Baxter [2014] NSWCATAP 50 at [34]- [35]. The Tribunal was not bound to ignore the interests of justice, as it appears to have considered that it was. On the contrary, its discretion extended to promote the interests of justice. In failing to take into account that making a decision on the merits would be in the interests of justice, after a full hearing had been conducted, the Tribunal's discretion miscarried.
5. The Appellants also submitted that a central consideration in determining whether to grant an extension of time is whether strict compliance with the rules would work an injustice upon the Appellants. In order to determine whether the rules would work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for an extension of time: Gallo v Dawson [1990] HCA 30; [1990] 93 ALR 479. Here, the Tribunal did not give any consideration to the consequences for the Appellants of the refusal to grant an extension of time. The effect of the refusal of an extension of time was that the Appellants would continue to be subject, indefinitely, to Exclusive Use By-Laws, the conditions of which the Tribunal had found to be arguably unfair. Secondly, the delay in bringing the application was attributable to efforts to resolve the dispute without resort to litigation. Thirdly, the Respondent had conceded that no portion of Rose Creek Road should be contained in the exclusive use areas such that it was not in dispute that the Exclusive Use By-Laws required amendment to that extent. The Tribunal erred in failing to weigh in the balance the central consideration of whether compliance with the rules would work an injustice upon the Appellants, such that the discretion miscarried.
6. The Appellants submitted that, for the above reasons, the consequences to the Appellants of the refusal to grant an extension of time, and the absence of any alleged prejudice to the Respondent, the Tribunal's decision was unreasonable in the House v The King sense.
7. The Appellants submitted that, for the above reasons, the Tribunal's failure to consider the matters referred to above established a substantial miscarriage of justice satisfying the preconditions for the grant of leave as set out in cl 12 of sch 4 to the NCAT Act.
8. Of the considerations in favour of a grant of leave to appeal identified in Collins v Urban, the Appellants' submissions state two are present. The Tribunal's decision involved an injustice which is reasonably clear in the sense of going beyond merely what is arguable. The Tribunal's exercise of discretion involved factual errors which were unreasonably arrived at and clearly mistaken. Leave ought to be granted.

1. The submissions of the Respondent are summarised in the following paragraphs.

1. The Respondent submitted that pursuant to s 40 of the NCAT Act an application to the Tribunal is to be made in the time and manner prescribed by the enabling legislation or the procedural rules. Section 149(1)(c) of the SSM Act permits applications to be made to the Tribunal but does not prescribe the time in which the applications may be made. Accordingly, that time is governed by the procedural rules and in this case by r 23(3)(b).
2. In response to the Appellant's submission that r 23(3)(b) is not a limitation provision but merely a procedural provision, the Respondent submitted that this is a distinction without a difference. The Respondent submitted that r 23(3)(b) is a "limitation law" within the meaning of s 78 of the Limitation Act 1969 (NSW). That section states that a limitation law of the State is to be regarded as part of the substantive law of the State and that a limitation law means a law that provides for the limitation or exclusion of any liability or the barring of a right of action in respect of the claim by reference to the time when a proceeding on, or the arbitration of, the claim is commenced.
3. The Respondent submitted that the critical question is when, as a matter of construction, a person becomes "entitled" under s 149(1)(c) to make an application to the Tribunal. That section provides that the Tribunal may make an order prescribing a change to a by-law if the Tribunal finds, "on application made by any interested person, that the conditions of the common property rights by-law relating to the maintenance and upkeep of any common property are unjust". When a person becomes entitled to make such an application it is a question of statutory construction, requiring consideration of the section having regard to its text, context and purpose: Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204; 106 NSWLR 1 [25]-[42].
4. The Respondent submitted that a number of matters are apparent from the text of s 149(1)(c). First, the conditions of a by-law relating to the maintenance or upkeep of common property could conceivably be unjust from the moment the by-law is enacted, or they may become unjust over time as a result of a change in circumstances. Accordingly, an entitlement to apply under this section may arise as soon as the by-law is made, or it may arise when the conditions become unjust (as occurred in Perpetual Corporate Trust (cited earlier)).
5. Secondly, in order to have standing under s 149(1)(c), the applicant must be an "interested person". We note that an interested person is defined in s 226 of the SSM Act. Section 226 provides:

226 Interested persons

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

(a) the owners corporation,

(b) an officer of the owners corporation,

(c) a strata managing agent for the scheme,

(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,

(e) if the strata scheme is a leasehold strata scheme, the lessor of the scheme.

(2) The "interested persons" for the purpose of making an application to the Tribunal under this Act relating to a strata scheme for a part strata parcel also include the following--

(a) the owners corporation or a strata managing agent for, an owner of a lot in, a person having any other estate or interest in a lot in, or an occupier of a lot in, any other scheme affecting the building,

(b) any other person for the time being bound by any strata management statement for the building.

1. The Respondent submitted that if the conditions of a by-law are unjust at the time an applicant acquires a relevant interest, the entitlement to apply under the section would arise when the interest is obtained.
2. A third consideration contended for by the Respondent arises by analogy with cases such as Wardley v WA [1992] HCA 55; (1992) 175 CLR 514 where it was observed by members of the High Court (in the context of a claim for damages for misleading or deceptive conduct) that to compel a plaintiff to institute proceedings before the existence of his or her loss is ascertained or ascertainable would be unjust. The Respondent submitted that, likewise, it would be unjust to compel an applicant to institute proceedings under s 149(1)(c) before the applicant knows, or could with reasonable diligence discover, that the relevant conditions relating to the maintenance or upkeep of common property in the by-law are unjust.
3. The Respondent submitted that the above analysis gives a straightforward answer to the question of when a person becomes entitled to apply under s 149(1)(c). Thus, a person becomes so entitled when the person satisfies the requirement of being an "interested person" and knows or could with reasonable diligence discover that the conditions of the common property rights by-law concerning the maintenance or upkeep of common property are unjust.
4. The Respondent submitted that the above interpretation is consistent with the Tribunal's decision at first instance and with a number of contextual factors bearing on the interpretation of s 149(1)(c).
5. The Respondent's submission states that s 149 creates three rights to apply to the Tribunal in respect of a common property rights by-law. The first is an application under s 149(1)(a) by an owner of a lot claiming that an owners corporation has unreasonably refused to make such a by-law. The second is an application under s 149(1)(b) by an owner or an owners corporation, claiming that an owner has unreasonably refused to consent to such a by-law (or proposed amendment or repeal of one) - which consent is required pursuant to s 143(1). The third is s 149(1)(c). In each case the Tribunal has a discretion to prescribe a change to the by-law if the Applicant establishes the necessary criteria.
6. An entitlement to apply under s 149(1)(a) arises when the Owners Corporation refuses to make the common property rights by-law, and an entitlement under s 149(1)(b) arises when the owner refuses to consent to the terms of the by‑law. Thus both provisions confer a right to apply on the occurrence of a particular event. In the Respondent's submission, there is no reason why s 149(1)(c) should be interpreted to give rise to some sort of continuing right, in contrast to the other rights conferred by the section.
7. Section 149 is in substantially the same terms as s 120A of the now repealed Strata Titles Act 1973 (NSW which was introduced by sch 1, cl 6 of the Strata Titles (Amendment) Act 1987 (NSW). The amending Act also amended the provisions of the 1973 Act governing exclusive use by-laws by introducing the equivalent of what is now s 144 of the SSM Act - requiring that the maintenance and upkeep of common property subject to such a by-law is allocated either to the owners corporation or to the lot owners benefiting from exclusive use rights. The Respondent's submissions refer to the second reading speech given on the introduction of the Strata Titles (Amendment) Act 1987 where, according to the submission of the Respondent, there is an explanation that the introduction of the equivalent of s 149 was to provide a mechanism to resolve disputes about the method of determining contributions towards the upkeep of common property, in view of the new statutory scheme requiring such contributions to be allocated either to the owners corporation or to the lot owners benefiting from the exclusive use right.
8. In the Respondent's submission, the intention of Parliament was for the provision to provide a mechanism for disputes regarding conditions of by-laws to be resolved, not to confer some kind of ongoing obligation on an owners corporation.
9. The Respondent submitted that the Tribunal was correct to find that r 23(3)(b) applies to s 149(1)(c) such that an application is required to be brought within 28 days after the entitlement to do so arises, subject to any extension of time being granted.
10. In response to the Appellants' submissions that s 149(1)(c) creates a continuous right to apply, rather than an entitlement arising once it becomes apparent that the by-laws are unjust, the Respondent submits that the Appellant's argument is erroneous and not supported by authority.
11. The Respondent refers to Doherty where the Appeal Panel held that an owners corporation's duty under s 106(1) of the SSM Act to properly maintain and keep in the state of good and serviceable repair the common property is a continuous duty such that where common property has been damaged and not repaired, the breach of the obligation is continuous until a repair takes place. The Respondent submitted that an obligation to repair property is breached when the time in which the property is to be repaired has elapsed, whereas an obligation to maintain property in a state of repair is continuously breached whilst the property is not in the promised state of repair: see Larking v Great Western (Nepean) Gravel Ltd (in liq) [1940] HCA 37; (1940) 64 CLR 221 at 231 and 236-7 and Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [91]. The decision in Doherty was correct because s 106(1) of the SSM Act is clearly analogous to the second type of clause (that is, it imposes an ongoing and continuous obligation on the owners corporation).
12. The Respondent submitted that decisions such as Doherty and Larking do not turn on there being a "continuous state of affairs". The two situations distinguished in Larking both involve a continuous state of affairs - being that the property remains in a state of poor repair. The relevant distinction is whether the obligation to repair is "once and for all", or whether it is ongoing until the property has been repaired.
13. The Respondent submitted that it follows that Doherty has little to say about a provision such as s 149(1)(c) of the SSM Act. The entitlement under that section does not arise from a breach of any kind of continuous obligation (or any obligation). It arises on the occurrence of a particular state of affairs. As in a case where a landlord is obliged to repair a property within a reasonable time but fails to do so, that the state of affairs giving rise to the cause of action is a continuing one does not mean the action continuously refreshes itself.
14. The Respondent referred to the judgment in Perpetual Corporate, which concerned a by‑law with a "sunset" clause pursuant to which, if the relevant lot owner failed to comply with certain "critical obligations" by a particular date, it would forfeit the benefit of the by-law while remaining liable for the costs. Elkaim AJ held that the sunset clause was unjust [166]. Perpetual Corporate was thus a case in which the by-law was not initially unjust, and only became unjust some years after it was made, as a result of the occurrence of a contingency (the lot owner triggering the sunset clause by failing to comply with the critical obligations in time). The Respondent submitted that the application of r 23(3)(b) did not arise in that case.
15. The Respondent submitted that the judgment in Cooper is not on point, contrary to the Appellants' submissions. The Respondent submitted that the observations of Basten JA that s 139 of the SSM Act focuses on the character of the by-law rather than the state of knowledge of any particular lot owner is no doubt correct but that s 139 is in very different terms to s 149(1)(c). The Respondent submitted that the combined effect of ss 136(2), 139 and 150 is that if a by-law contravenes one of the provisions in s 139, then it is of no force or effect, and the Tribunal can declare that it is invalid. In doing so, the Tribunal is not exercising a discretion; it is recognising a state of affairs. That is in contrast to s 149(1)(c), which confers a discretionary power on the Tribunal to prescribe a change to a by-law in certain circumstances.
16. With respect to the decision of the Appeal Panel in Coscuez the Respondent submitted that the Appellants relied on a "preliminary view" expressed by the Appeal Panel (in obiter dicta and without the benefit of argument), that for an application under a provision of the SSM Act to which s 227 applies, the 28 day period in r 23(3)(b) runs from the date on which one of the conditions in s 227(1)(a)-(c) is satisfied. As the Tribunal observed in the Decision [43] even if the Coscuez argument is correct, the Appellants were in any event out of time because a mediation occurred on 14 December 2021 and the application was filed in the Tribunal on 16 November 2022.
17. Further, the Respondent submitted that r 23(3)(b) refers to "the day on which the applicant became entitled under the enabling legislation to make the application, whereas s 227(1) refers to whether an application 'made to the Tribunal' is accepted". Thus, an entitlement to make the application may have arisen, notwithstanding that the application may or may not be accepted (indeed the application may be accepted under s 227(1)(c) even if no mediation has occurred). Additionally, the Appellants' interpretation has the result that a prospective applicant can effectively postpone the commencement of the limitation period indefinitely by not applying for a mediation, which is unlikely to have been what Parliament intended.
18. The Respondent also submitted that the Appellants' arguments should be rejected because s 227 does not only apply to applications under s 149(1)(c), but also to many other provisions of the SSM Act (such as ss 77(4), 156-158, 232 and 234). Thus, the issue should not be determined by reference to matters that that are idiosyncratic to s 149(1)(c).
19. For the above reasons the Respondent contends that appeal ground 1 should be rejected.

1. With the exception of Mr Jonathan Davies, the Respondent submitted that the Tribunal's finding at [67] was both adequately reasoned and open on the evidence before the Tribunal. From [61] to [64] of the Decision the Tribunal summarised the evidence given by Mr Blondel in relation to steps he had taken to challenge the exclusive use by-laws. The Tribunal found that all of the other Applicants were on notice about issues relating to the exclusive use by-laws by reason of Mr Blondel's letter to them all dated January 2020. The Respondent submitted that the Tribunal's reasons were expressed with sufficient clarity for the Appellants to understand why the decision was made - which is all that was required: New South Wales Land and Housing Corp v Orr [2019] NSWCA 231; 100 NSWLR 578 at [65-[77]. The Respondent submitted there is no substance to appeal ground 3.
2. With respect to ground 2 the Respondent submitted that it was open to the Tribunal to find that Mr Blondel's letter of January 2020 notified the Applicants that the conditions of exclusive use by-laws relating to the maintenance or upkeep of common property were unjust. Mr Blondel's evidence was that he sent the letter to all of the apartment lot owners and that evidence was not qualified or contradicted by any other evidence. The Respondent submitted that each of the apartment lot owners received and paid quarterly invoices which showed the amount payable for their regular levies and the amount payable for the exclusive use by-law levies. Accordingly, if the Applicants are correct that the by-laws were unjust because they imposed an unjustifiable cost on the apartment lot owners, that ought to have been apparent to each of them from at least the time they paid their first quarterly invoice. It was open to the Tribunal to find on the evidence that the apartment lot owners had been notified of any injustice of the conditions of the exclusive use by-laws regarding the maintenance and upkeep of the common property by no later than January 2020.
3. With respect to Mr Davies the Respondent accepts that there was one piece of evidence (namely a schedule attached to the Respondent's Points of Defence) concerning the date upon which Mr Davies purchased his lot and the Appellants did not draw to the attention of the Tribunal the position of Mr Davies. Accordingly, the Tribunal cannot be criticised for making an error with respect to the date of acquisition by Mr Davies of his lot.
4. In any event the evidence before the Tribunal was that Mr Davies received Mr Blondel's letter in about August 2020.
5. The Respondents referred to the submission of the Appellants that there was no evidence that Mr Blondel's letter was read by the Appellants. The Respondent submitted that in circumstances where the Appellants themselves relied upon Mr Blondel's evidence that the letter had been sent to all of them and no Appellant gave evidence that he had not received or read the letter, it was open to the Tribunal to infer that they did receive and read the letter.
6. With respect to the Appellant's submission that Mr Blondel's letter did not set out the facts relied upon by the Appellants in relation to the unfairness of the by-laws, the Respondent submitted that the relevant question is when did the Appellants become entitled to make the application, not when they became aware of every fact they ultimately relied upon in support of the application. The Respondent submitted that the letter stated the substance of the Appellants' complaint, which is what entitled them to make the application.
7. The Respondent referred to the Appellants' criticisms of the Tribunal for not making findings as to when the injustice of the conditions in the by-law actually arose. The Respondent submitted that the criticism is unjustified because a fair reading of the reasons indicates that the Tribunal proceeded on the assumption that if the Appellants were correct that the by-laws were unjust, the injustice must have arisen by the time Mr Blondel began complaining about the by-laws in 2017 and that it had certainly arisen by the time of his letter of January 2020.

1. The Respondent submitted that the Appellants' submissions in support of ground 4 take a "pedantic and unjustifiable approach to the Tribunal's reasons, contrary to the admonitions in the authorities that reasons must be read fairly and as a whole and not inspected with a fine tooth comb attuned to identifying error. The references in the Decision at [64] to [67] to the Appellants being "concerned" about certain matters may have been infelicitous but, on a fair reading, what the Tribunal considered was when the Appellants were on notice of the matters which they say gave rise to the injustice in the conditions of the by-laws. That is a legitimate approach to the limitation question.
2. In response to the alternative approach urged by the Appellants (which is to ask when the conditions of the by-laws in fact, became unjust, rather than when the Appellants were on notice that they were unjust) the Respondent says that the approach taken by the Tribunal was more beneficial to the Appellants than the approach that they now urge. That is because if Mr Blondel had become alive to the issue in early 2017 (as found by the Tribunal), then the conditions must have been in existence from at least that time.

1. This ground contends that the Tribunal's exercise of the discretion in s 41 to extend time miscarried. The Appellants have sought leave to appeal because ground 5 raises questions of fact and law.
2. The Respondent submitted that the criteria identified in Collins v Urban have not been established by the Appellants. Ordinarily it is appropriate to grant leave to appeal only in matters that involve an injustice which is reasonably clear. Here, the refusal to extend time was not obviously unjust. To the extent that the Appellants argue that there was a factual error unreasonably arrived at and clearly mistaken, the Respondent says that there was no such error - except in the case of Mr Davies. The earlier submissions explained that the mistake with respect to Mr Davies was immaterial.
3. The Respondent then put forward the following alternative submission to be considered if the Appeal Panel were to grant leave.
4. The Respondent submitted that because the decision not to extend time was discretionary, in order to succeed on appeal ground 5 the Appellants must establish a House v The King error. The Respondent relied upon principles explained in Macedonian Orthodox Community Church St Petka Inc [2008] HCA 42; (2008) 237 CLR 66 where the High Court said at [138] that in the absence of a requirement mandating particular weight to be given to one factor the question of what weight the relevant factor should be given or what balance should be struck among them is for the person on whom the discretion is conferred, provided no error of law or fact is made and all material considerations are taken into account and no irrelevant considerations are taken into account. Appellant intervention may occur if there is a plain injustice or Wednesbury unreasonableness. With respect to mistaken facts, the only error made by the Tribunal concerned Mr Davies but there was no error in failing to consider his particular circumstances. The delay in his case was still very substantial.
5. With respect to ground 5(b) the Respondent submitted that a detailed evaluation of the applicant's prospects is not ordinarily required and is not a mandatory consideration in the House v The King sense. In this case, the Tribunal accepted that the Appellants had an arguable case that weighed in favour of an extension of time. The Appellants have not established that the Tribunal acted on a wrong principle or failed to take into account a mandatory consideration.
6. With respect to ground 5(c) the Respondent submitted that the Appellants have identified neither a material consideration which the Tribunal failed to consider, nor a failure to apply the correct principle. The Respondent submitted that a fair reading of the Tribunal's findings at [80] is that the Tribunal accepted that a hearing on the merits having concluded, weighed in favour of granting an extension, but found that it was not determinative of whether an extension should be granted, because it is common for such preliminary questions to be determined in the Tribunal after a full hearing on the merits. The Tribunal did not err in its reasoning.
7. With respect to ground 5(d) the Respondent's submissions rebut the Appellants' submission that the Tribunal failed to take into account a material consideration in that the Tribunal gave no consideration to whether refusing to grant an extension of time to the Appellants would work an injustice. The first consideration addressed by the Appellants was that the effect of not granting an extension would be that the Appellants would be shut out of an arguable case. The Respondent submitted that the Tribunal did take that into account at [78]. A second consideration raised by the Appellants was the reasons for the delay. The Tribunal considered that at [74]. A third consideration is the concession made by the Respondent in relation to Rose Creek Road. The Respondent conceded that the Tribunal did not consider that matter in relation to the application to extend time, but no submission was made that the Tribunal should have considered it. Thus, the failure to do so was not an error: Fisher v Nonconformist Pty Ltd [2024] NSWCA32; [2024] NSWCA 32; 114 NSWLR 1 at [47]; Macedonian Community at [120]- [121]. The Respondent submitted that ground 5(d) should be rejected.
8. With respect to ground 5(e) which concerns the contention that the Tribunal's decision was unreasonable in the House v The King sense, the Respondent submitted that it was not so obvious that the Appellants deserved an extension that the refusal to grant one was manifestly unjust.
9. The Respondent submitted that the appeal should be dismissed. In the alternative, the Respondent made the following submissions.
10. If ground 1 succeeds on the Appellants' primary argument, then the Appellants did not require an extension of time and the Respondent accepts that the appeal should be allowed, and the matter should be remitted to the Consumer and Commercial Division for determination on the merits. If ground 1 succeeds on the s 227/Coscuez argument, then the Respondent submitted that the Appellants, in any event, require an extension of time, and so the Tribunal's decision should not be disturbed. In the alternative, the matter should be remitted to the Consumer and Commercial Division for re-exercise of the discretion to extend time.
11. If either of ground 2 or 3 succeeds, then the matter should be remitted for reconsideration of the evidence. If ground 4 succeeds, then the matter should be remitted for determination in accordance with the law. If ground 5 succeeds, then the matter should be remitted for re-exercise of the discretion to extend time.

1. This is an appeal from a decision made in the Consumer and Commercial Division of the Tribunal. Appeals from that division are regulated by s 80 of the NCAT Act and by cl 12 sch 12 of the same Act. In essence this means that there is an appeal as of right on a question of law and leave is required with respect to other grounds on the bases regulated by cl 12.
2. We are of the opinion that the appeal should be upheld on the basis of ground 1. It is therefore not necessary to consider the other grounds of appeal. Our reasons are set out below.
3. Ground 1 raises a question of law, namely a question of statutory construction as to whether an application made pursuant to s 149(1)(c) is required to be brought within the timeframe regulated by r 23(3)(b) of the Rules.
4. The Appellants' case as pleaded in the attachment to the Strata and Community Schemes Application lodged on 16 November 2022 can be summarised by reference to paragraph 22 of the pleading. There, the Appellants contended that the conditions of the Exclusive Use By-laws are unjust because they do not confer any material benefit on the Appellants in exchange for their obligation to pay the cost of maintenance and upkeep, and the Appellants have to pay for the maintenance and repair of the relevant part of common property, but other lot owners access and use that common property causing wear and tear to that common property. It is not necessary to refer to the balance of the contentions in paragraph 22.
5. The Exclusive Use By-laws at the heart of the dispute between the parties provide for the Appellants to have the benefit of the "right of exclusive use and enjoyment or (sic) that part of the common property designated..." "...on the basis that the body corporate shall continue to be responsible for the proper maintenance and keeping in a stale (sic) of good and serviceable repair of such part of the common property".
6. The Exclusive Use By-laws also impose upon the Appellants the obligation to contribute "monies by way of levies to a special fund to the body corporate, such fund being adequate to enable the body corporate to undertake the works referred to in this by-law".
7. Thus, the Respondent has had the obligation to "continue to be responsible for the proper maintenance and keeping in a stale (sic) of good and serviceable repair of such part of the common property".
8. The obligations of the owners corporation to maintain common property and keep it in a state of good and serviceable repair is, in our view, a broad obligation. The extent of the obligation was discussed in Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157. That case concerned s 62 of the Strata Schemes Management Act 1996. The terms of s 62 are, in substance, the same as the language setting out the obligation of the Respondent under the Exclusive Use By-laws. In discussing s 62(1) his Honour, Brereton J said:

"3 There is no suggestion in this case that subsection (3) is applicable. It is subsection (1) that is relevant. Section 62(1) imposes on an owners corporation a duty to maintain, and keep in a state of good and serviceable repair, the common property. That duty is not one to use reasonable care to maintain and keep in good repair the common property, nor one to use best endeavours to do so, nor one to take reasonable steps to do so, but a strict duty to maintain and keep in repair.

4 The duty to maintain involves an obligation to keep the thing in proper order by acts of maintenance before it falls out of condition, in a state which enables it to serve the purpose for which it exists [Hamilton v National Coal Board [1960] AC 633, 647 (Lord Keith of Avonholm); Haydon v Kent County Council [1978] QB 433, 464 (Shaw LJ); Ridis v Strata Plan 10308 [2005] NSWCA 246, [161]]. Thus the body corporate is obliged not only to attend to cases where there is a malfunction, but also to take preventative measures to ensure that there not be a malfunction [Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Limited (1989) 18 NSWLR 33 (Young J); Ridis, [162]-[163]]. The duty extends to require remediation of defects in the original construction of the common property [Proprietors Strata Plan No. 6522 v Furney [1976] 1 NSWLR 412, 416 (Needham J); Ridis [164]-[165]]. And it extends to oblige the owners corporation to do things which could not be for the benefit of the proprietors as a whole or even a majority of them [Proprietors Strata Plan 159 v Blake (1986) CCH Strata Titles Cases 30-068 (Yeldham J); Ridis, [166]].

1. In our view the obligation of the Respondent under the Exclusive Use By-laws involves the responsibility for ensuring that the benefit accruing to the Appellants (namely the entitlement to exclusive use and enjoyment) is capable of being enjoyed and enforced in a practical way. Exclusivity does not involve sharing with other lot owners not entitled to the benefit of the exclusive use by-laws.
2. The Appellants' case, being based upon s 149(1)(c), required the Appellants to persuade the Tribunal that the conditions of the relevant Exclusive Use By-laws are unjust. The conditions include those relating to "the maintenance or upkeep of any common property".
3. When the case was heard by the Tribunal at first instance, the judgment of the Court of Appeal in Owners Corporation SP 6534 v Elkhouri; Owners Corporation SP 6534 v Perpetual Corporate Trustee Ltd [2024] NSWCA 279 (published on 27 November 2024) was not available and indeed was not available when the Notice of Appeal was filed in these proceedings. That judgment (to which we will refer as Owners Corporation SP 6534) is instructive and to the extent relevant, we are bound by it.
4. Before referring at length to Owners Corporation SP 6534, we express the view that in the context of the Appellants' case the conditions of the Exclusive Use By-laws could be found to be unjust if it were found that the benefits of exclusive use to the relevant part of the common property were not available to the Appellants and that other lot owners ( or indeed other persons) did or could use that part of the common property, inconsistently with the exclusive benefit held by the Appellants. One reason for that state of affairs could be that the Respondent has failed to comply, or is unable to comply, with its obligation to "be responsible for the proper maintenance and keeping in a state of good and serviceable repair" such relevant part of the common property.
5. In Owners Corporation SP 6534 an exclusive use by-law (called by-law 30 and referred to in the judgment as par 30) gave a lot owner the exclusive use and possession of part of the common property on the condition that by a certain date the lot owner completed certain work. This the lot owner failed to do. The Court of Appeal considered the provisions of s 149(1)(c) and extracts of the judgment, namely paragraphs 119, 121, 122, 123 and 142 are set out below:

119 What must be found "unjust" under s 149(1)(c) of the SSMA are "the conditions of a common property rights by-law relating to the maintenance or upkeep of any common property". The parties disputed a number of aspects of the construction of those words.

121 However, there was a dispute about whether the words "relating to the maintenance or upkeep of any common property" qualify "the conditions" or the "common property rights by-law" as a whole. Because of the proximity of the language, the more natural reading might be that the words "relating to ..." qualify the "by-law" rather than the "conditions". But depending on matters of context, either reading would be available.

122 Although the words "relating to" are very broad, their function here is to delimit the subject matter of the paragraph. As the Owners Corporation pointed out, s 144(1) of the SSMA provides that a common property rights by-law must provide that either the owners corporation or the lot owner is to be responsible for the maintenance and upkeep of the relevant part of the common property. In other words, every common property rights by-law will relate to maintenance or upkeep. If the words "relating to ..." qualified the "by-law", they would thus serve no purpose of limitation. Accordingly, I consider that the words "relating to ..." qualify the "conditions", rather than the by-law as a whole.

123 It follows that in order to come within s 149(1)(c), par 30.3 must itself be or contain "conditions ... relating to maintenance or upkeep".

142 Section 149(1)(c) of the SSMA, like s 7(1) of the Contracts Review Act, is beneficial legislation conferring a broad discretionary power to relieve against something found to be unjust. In the absence of contrary authority or any clear indication in the terms of the SSMA, I would consider it at least possible that, depending on the respect in which the particular conditions were said to be unjust, and to whom they were said to be unjust, the determination of that issue might include consideration of circumstances beyond the terms of the by-law.

1. In Owners Corporation SP 6534 the Court of Appeal considered and distinguished the judgment in Cooper. That case concerned the question of whether a by-law was "harsh, unconscionable, or oppressive" under s 139(1). The focus of the Court of Appeal in that case was the inherent qualities of the by-law or the character of the by-law. However, in Perpetual Corporation v SP 6534, the judgment of McHugh JA stated at [146] that s 149(1)(c) is not, in considering whether there is "unjustness", confined to a consideration inherent in the by-law itself. At [149], his Honour stated:

149 It is thus of the essence of common property rights by-laws that they treat lot owners unequally. Not only does such inequality tend to invite disputation; it also bears on the scope of the circumstances to be taken into account in determining whether the conditions of such a by-law are "unjust". Given that the class of by-law to which s 149(1)(c) is directed will generally involve some element of inequality on its face, it seems to me that assessing whether the conditions of the by-law are "unjust" may call for consideration of circumstances extrinsic to the by-law itself.

1. In further reference to the distinction between the case before him and the Cooper case, McHugh JA said at [152]:

152 The operation of s 149(1)(c) also differs significantly from that of s 139(1). Section 139(1) directly prohibits by-laws that are harsh, unconscionable or oppressive. That is part of the context in which Basten JA referred at 163 [9] to Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45 and the restriction on use of extrinsic evidence in construing registered dealings in real property under the Torrens system. Similarly, to the extent that s 139(1) operates in combination with s 150(1), the only power the latter section confers on the Tribunal is to declare the whole by-law invalid. By contrast, s 149(1)(c) operates only after a finding by the Tribunal that the particular conditions are "unjust" enlivens its discretionary power to make an order changing the by-law. Sections 139(1) and 150(1) have far less flexibility than the beneficial discretionary power conferred by s 149(1), which permits the Tribunal to mould appropriate "changes" to a by-law. While the rigid operation of ss 139(1) and 150(1) may provide a reason for confining the "harsh, unconscionable or oppressive" criterion to consideration of the inherent character of the by-law, there is no such reason in relation to s 149(1)(c).

155 I have concluded that, depending on the respect in which the particular conditions were said to be unjust, and to whom they were said to be unjust, the matters to be taken into account for the purposes of the evaluative judgment required by s 149(1)(c) are not limited to what is inherent in the by-law.

1. We take it that the extracts set out of the above judgment make it clear that the focus of s 149(1)(c) is on whether evidence establishes that the conditions of the by-laws relating to maintenance and upkeep are unjust and that such evidence may include evidence of conditions extrinsic to the by-laws themselves.
2. In our view a central feature of the Exclusive Use By-laws in this case is that the Respondent has had a continuing obligation for the proper maintenance and keeping in a state of good and serviceable repair that part of the common property the subject of the promise of exclusivity. That obligation was the basis by which the Appellants acquired the right to enjoy exclusive use of the relevant part of the common property as well as the obligation to contribute levies to the special fund. In our view, the obligation imposed upon the Respondent must be construed as including the obligation to ensure that the benefits of exclusivity promised to, and paid for, by the Appellants was available to them in a practical sense. In context the phrase "proper maintenance" (being part of the responsibility of the Respondent) is intended to ensure that the Appellants have acquired an obligation from the Respondent to maintain exclusivity.
3. It is clear from the language of the obligation imposed on the Respondent in the exclusive use by-laws that the obligation is "continuing". It is not "one off".
4. In Doherty, the appeal concerned an order made by the Tribunal at first instance that the owners corporation undertake works involving fencing and landscaping. The Appeal Panel found at [85] that the Tribunal has jurisdiction to make such an order under s 232 of the SSM Act in respect of damage to lot contents arising from the exercise of a power of entry to carry out works in accordance with s 122(6). The owners corporation pressed as a ground of appeal that the owners' application was out of time having been filed more than 28 days after the removal of the fence and landscaping and in the absence of a specific provision in s 122 of the SSM Act.
5. At [93] the Appeal Panel rejected the contention of the owners corporation and found the duty to repair common property was "continuous until the repair occurred" and that the duty to "remediate damage to lot property was also continuous in its own right". The full text of [93] has been set out earlier in this decision.
6. We are of the same view with respect to the Respondent's obligations under the Exclusive Use By-laws - that the Respondent's obligations are continuous. We agree with the Appellants' submissions that the entitlement to bring an application under s 149(1)(c) does not turn on the occurrence of any event. Rather, the entitlement depends upon the existence of a state of affairs, being that the conditions of the common property use by-laws are unjust.
7. It is relevant that the applicants under s 149(1)(c) are "interested persons", being a wider class of applicants than envisaged by s 149(1)(a) and (b). For example, an interested person includes a strata managing agent for the scheme, an occupier of the lot in another scheme affecting the building (of the scheme) in addition to a lot owner and the owners corporation. This is to be distinguished from the class of applicants envisaged by s 149(1)(a) and (b) where the applicants are limited to an owner, or the owners corporation (in the case of s 149(1)(b)).
8. The point of the above observation is that the nature of an application brought under s 149(1)(c) and the wider class of potential applicants is such that there would be little or no point in such an application being regulated by the very tight timeframe imposed by r 23(3)(b). The possibility always exists that a new lot owner or a newly appointed strata manager (or other interested person) could become entitled to bring such an application even though, if r 23(3)(b) applied, other lot owners may be precluded from doing so.
9. Further, if it were to be argued that the existence of unjust conditions was the trigger by which the time to bring an application should be measured, disputes would arise as to whether conditions that cumulatively mounted could be considered unjust. There may be no clear commencement point by which a finding could be made that the conditions became unjust. This is to be distinguished from s 149(1)(a) and (b) where a refusal could be considered a more easily identifiable commencement date for time to run.
10. For the above reasons we are of the view that the Appellants' application seeking to invoke s149(1)(c) in respect of the exclusive use by-laws the subject of the application is an application that is not barred or otherwise precluded from lodgment by the operation of r 23(3)(b).Accordingly, ground 1 is upheld and the Appellants' application must be remitted to be determined on its merits.
11. There is in our view no reason in principle why the application should not be determined by the same member of the Tribunal (assuming the availability of the member). If remitted to another member it may be desirable to afford the parties the opportunity to make submissions as to what material should be made available to that member.
12. In view of our conclusion that appeal ground 1 should be upheld and the above comments, it follows that the following orders must be made:

(1) Appeal upheld.

(2) Order 4 (dismissing the Appellants application) in the proceedings at first instance is set aside.

(3) The Appellants' application is remitted to the Consumer and Commercial Division of the Tribunal to be determined on its merits subject to any further directions that the Tribunal may make with respect to reliance upon additional evidence and/or submissions.

(4) If the Appellants seek costs of the appeal, the Appellants must file and serve submissions in support of such an application within 21 days of the publication of these reasons.

(5) The Respondent has a further period of 21 days in which to file and serve submissions opposing the Appellants' costs application.

(6) Any submissions on costs should include a submission as to whether the Appeal Panel can determine costs of the appeal on the papers and by so doing dispense with a further hearing.

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.