Casey v Renfay Projects Pty Ltd; Casey v The Owners - Strata Plan No 586

The Primary Decision

1. On 31 August 2023 the Tribunal published its decision and reasons. The Senior Member made the following orders: - 1. The applicant and the second respondent in HB 22/22490 (OSP 568) are to lodge with the Tribunal an agreed form of a proposed work order, and in (the) event of their disagreement, their respective form of a proposed work order, by 14 September 2014. 2. Proceedings HB 22/22490 are dismissed except in relation to the claim for a work order for items 1 and 6 in these statement of reasons at [101]. 3. Proceedings SC 22/23241 are dismissed. 4. The second respondent in proceedings HB 22/22490 is to pay the applicant's costs as agreed or assessed under the applicable costs legislation. 5. The applicant in proceedings 22/22490 is to pay the first respondent's costs as agreed or assessed under the applicable costs legislation. 6. The applicant in proceedings SC 22/23341 is to pay the first and second respondents costs as agreed or assessed under the applicable costs legislation. 7. If any party wishes to make an application to vary one or more of order (4), (5) and (6) above, the applicant (costs applicant) must file and serve a costs application, including submissions limited to three pages and any evidence in support, by 14 September 2023.
2. As will be apparent from these orders, Ms Casey had only limited success in her claims. In proceedings HB 22/22490, the owners corporation was obliged to carry out further remedial works in relation to two (2) items only, and all her claims against Renfay were dismissed. The 2 items were the removal and replacement of the roof capping for the building and repairs to the bathroom ceiling. Proceedings SC 22/23241 were dismissed against both respondents.
3. The Senior Member found at paragraph [88] that the Tribunal had no jurisdiction to determine the claim against Renfay in proceedings HB 22/22490 because Ms Casey had adduced no evidence as to when the relevant building work had been completed, so that the Tribunal could not be satisfied that Ms Casey's claim for breach of the statutory warranties had been commenced within the two (2) year period specified in s18E(1) in the Home Building Act 1989 (NSW) (HB Act). Further, the Senior Member found that Ms Casey's points of claim had not contended that any of the alleged defects in this remedial work constituted a "major defect" for which there was a six (6) year warranty period.
4. The Senior Member further found as against Renfay, that Ms Casey was not entitled to the benefit of the statutory warranties, because the relevant building contract provided for works to be undertaken to the common property only and as such, she did not come within the definition of a "non-contracting owner" in cl 1 of Sch 1 of the HB Act - see the Primary Decision, paragraph [98].
5. In relation to OSP 586, the Senior Member held that it had breached its statutory duty under s 106(1) of the SSM Act and was responsible for any defects established in the remedial works carried out by Renfay. Ms Casey's expert, Mr O'Donnell, had identified six (6) defects - see paragraph [101] in the Primary Decision. However, having regard to the evidence of the other experts and the conclusions reached in their joint report, the Senior Member found that only items 1 and 6 from Mr O'Donnell's list constituted breaches of the statutory warranties, and consequently made a work order against the owners corporation in relation to those 2 items only - see the Primary Decision, paragraph [132].
6. In proceedings SC 22/23241 the Senior Member found that whilst the owners corporation had breached its statutory duty under s 106(1) of the SSM Act, he was not satisfied that circumstances existed to justify a compulsory management order under s 237 of the SSM Act - see paragraphs [154 - 156]. He also rejected Ms Casey's claim for additional compensation caused by the water ingress, specifically her claim for lost rental income - see paragraph [135].

The Work Order Decision

1. The parties were not able to agree on the form of a work order. On 18 September 2023 the Senior Member made a work order which he considered to be appropriate based on the scope of works prepared by OSP 586's expert. Order 1 was in the following terms: - 1. The second respondent is to contract with a suitably qualified and licensed contractor (the Contractor) for the carrying out of the following works as specified in the Joint Conclave Report dated 8 March 2023: 1. item 1 - remove and replace roof capping; and 2. item 2 - bathroom ceiling.
2. The works were to be completed by 22 December 2023.

The Costs Decision

1. Both Ms Casey and the owners corporation applied to vary the cost orders made on 31 August 2023.
2. The Senior Member dismissed Ms Casey's application, but accepted OSP 586's submission that it only be required to pay part of Ms Casey's costs in HB22/22490 because she had pursued her claim relying on 13 grounds of relief, but had ultimately been successful only in respect of two of the grounds, and further, that in respect to the roof capping work (item 1), the owners corporation had already agreed to undertake this work prior to the April 2023 hearing. Consequently, the Senior Member varied order (4) made on 31 August 2023 to the effect that OSP 586 be required to pay only 50% of Ms Casey's costs in HB 22/22490.

The Appeal of the Primary Decision

1. Ms Casey's Notice of Appeal challenged all the findings in the Primary Decision which were adverse, to her. She also submitted that the Primary Decision should be set aside, and in its place, there should be orders made that both respondents take all necessary steps to stop the water leakage, that she be reimbursed for her rental loss and her costs, and that orders be made in relation to the compulsory management of the strata scheme. She then filed separate appeals against the Work Order Decision and the Costs Decision.
2. The Notice of Appeal contained nine (9) grounds of appeal. However, at the commencement of the hearing of the appeals, Ms Casey's counsel indicated that appeal grounds 1 - 8 would not be pressed and that only the final appeal ground would be argued. Ground 9 is as follows: - 9 The Original Decision was made in the absence of procedural fairness, including: 1. The Appellant's right to cross- examine Renfay Matthew Georges of Renfay Projects was not fulfilled at the 28 April 2023 hearing, as per written request prior to (and during) the hearing consistent with NCAT guidelines, 2. The Appellant's evidence was rejected at the 28 April 2023 hearing, but Strata Plan's new evidence was accepted on two occasions at the hearing without notice, 3. The Original Decision gave no weight to key evidence introduced by the Appellant, including a non-compliance list dated 2 December 2022 being evidence of prolonging unnecessarily proceedings and disadvantaging the Appellant both financially and otherwise, 4. The Original Decision erred with the incorrect statutory warranty time limit, which was never disputed throughout the proceedings or at the hearing thus confronting the Appellant with an adverse decision after the case without opportunity to respond.
3. Counsel for Ms Casey also said that he would not be asking the Appeal Panel to make orders of the kind set out in the Notice of Appeal if the appeals were allowed. Rather, the orders made in the Primary Decision should be set aside and the matter should be remitted for rehearing by a differently constituted Tribunal upon the evidence already adduced and such further documents as the Tribunal may allow.

The Nature and Scope of Internal Appeals

1. Section 80(2)(b)) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), provides that an appeal from a decision of the Tribunal at first instance may be made as of right on a question of law, or with the leave of the Appeal Panel on any other grounds.
2. Grounds 1 - 8 in the Notice of Appeal raised matters of mixed fact and law, for which leave would have been required. However, Ground 9 raises a question of law. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel considered the requirements for establishing a question of law. These include but are not limited to (relevantly) whether there was a failure to afford procedural fairness.
3. Most of the matters referred in Ground 9 address the issue of whether Ms Casey was given a fair hearing in the Tribunal proceedings and whether she was afforded procedural fairness. These matters raise a question of law for which leave is not required.

Ms Casey's Submissions

1. Ms Casey's counsel directed the Appeal Panel's attention to several paragraphs in the transcript of the Tribunal proceedings to illustrate where the Tribunal had failed to afford Ms Casey procedural fairness. These are considered in the following paragraphs of these Reasons.
2. At paragraph [537] of the transcript, the Senior Member made the following ruling in relation to documents which Ms Casey wished to introduce into evidence: I'll make a ruling Ms Casey and if you (can) seek to renew the tender in the event that you can prove that it's been served. The Applicant seeks to tender a Bundle of Documents comprising 25 pages which was filed in proceedings SC 22/23241on the 9th of June 2022. The Respondents have indicated that they have not received these documents, In the absence of proof by the Applicant that these documents were served on the Respondents, I will not admit them into evidence, and they will be marked for identification MFI 1.
3. At paragraph [648] of the transcript, the Senior Member ruled in relation to the report submitted by Renfay's expert witness: Okay, over the objection of the Applicant, the Report - expert report of George Dahrie of 30th September 2022 is admitted into evidence and marked "Exhibit 5". If you wish to ask Mr Dahrie any questions you will be permitted to do so.
4. At paragraph [772] the Senior Member said in relation to the parties asking questions of the experts: Ms Casey and you Ms Hamdan and you Mr Georges, I'm going to have the experts deal with each of the items ……. before I will ask you whether you have any questions; and as I indicated I will consider any request to (ask) questions, I am not guaranteeing that you have the right to ask questions.
5. At paragraphs [1120 - 1127] when Ms Casey is cross-examining Mr Zakos, the expert witness for the owners corporation, this exchange took place between the Senior Member and Ms Casey: AC (Ms Casey): Ms Zakos what is the purpose of a dilapidation report such as Renfay did before the works started. Member: I won't allow that question. You can ask him about what he observed. The dilapidation report will speak for itself Ms Casey. If you want to make submissions based on it, you can do so. AC: Oh, I see. Mr Zakos were you aware that Renfay has attempted to repair the roof three times. Member: I reject the question AC: Were you aware that Renfay did the ceiling bathroom works on two occasions? Member: I reject the question AC: I'm wondering Mr Zakos why your photo of the bathroom ceiling was not showing any detail. It's very fuzzy, whereas the other photos did show some damages. Member: I reject the question.
6. At paragraph [1139] when continuing to cross-examine Mr Zakos, the Senior Member said: Ms Casey, you've got ten minutes and no longer.
7. At paragraph [1155] when further cross-examining Mr Zakos, the Senior Member said to Ms Casey: Okay we've been over this, gentlemen. You've got five minutes Ms Casey. But, according to Ms Casey's counsel, after less than 5 minutes had elapsed since the Senior Member had said that, Ms Casey had, in fact, 10 minutes remaining.
8. At paragraphs [1683 -1687] of the transcript, when Ms Casey was cross- examined by counsel for the owners corporation, there were these exchanges between the Senior Member and Ms Casey, as follows: AC: Why are you cross examining on something that was not in evidence. Member: I'm not here to answer your questions Ms Casey. AC: But why (inaudible) Member: A cross-examiner can put documents to a witness that are not in evidence, that's an acceptable approach. Now just please focus. AC: Well, if I had known that I wouldn't have tried to adjourn.
9. These transcript extracts, Ms Casey's counsel submitted, suggested that his client had not been treated fairly during the hearing, in that she was not permitted to tender additional documents, whereas the other parties were able to, and she was restricted in the questions that she was able to put to the respondents' experts. Ms Casey's counsel submitted that had she been permitted to test this evidence in a more detailed manner, it was possible that the Tribunal would have made a different and broader form of work order, not limited to items 1 and 6 in the joint report.
10. Counsel for Ms Casey also submitted that the transcript revealed the respondents' expert witnesses were able to put questions to his client's expert, Mr O'Donnell, but that Ms Casey was not able to question the respondents' experts in a similar fashion.
11. Ms Casey's counsel further submitted that during the hearing, the Senior Member did not alert Ms Casey to the possibility that he might find that the relevant remedial works had been completed more than 2 years before the Proceedings were commenced, nor that she needed to address the requirements of s 237(3)(a)(b) and (c) of the SSM Act when asking for a managing agent to be appointed to the owners corporation. Had she been aware that these findings were likely to be made, so it was submitted, she could have dealt with them in her subsequent written submissions.
12. Counsel referred to Hanson v Metricon Homes Pty Ltd [2020] NSWSC 401, (Hanson) where the Supreme Court of New South Wales had addressed the issue of procedural fairness in Tribunal proceedings. Hamill J allowed an appeal from the Appeal Panel which had confirmed a decision of the Tribunal not to allow an adjournment when the applicant homeowner's solicitor withdrew from the proceedings on the morning of the appeal. In the circumstances of that case, the judge held that decision amounted to a denial of procedural fairness.
13. The Court said in Hanson at [56] that: In order to ensure that procedural fairness is afforded during the course of proceedings, the Tribunal has a duty to provide reasonable opportunity for each party to be heard and to present their case. and at [57], In addition to the common law, s 38(5) of the NCAT Act requires the Tribunal to ensure that the parties understand proceedings and have an opportunity to be heard.
14. Counsel for Ms Casey also referred to J's Absolute Services Pty Ltd v The Owners - Strata Plan No 67246 [2021] NSWCATAP 315 (J's Absolute Services) and ZInck v NJS Enterprises Pty Ltd [2021] NSWCATAP 401 (Zinck). In J's Absolute Services, an appeal panel allowed an appeal against a costs order in circumstances where the party against whom the order was made did not have the opportunity to seek legal advice and representation or seek a short adjournment to consider the issues. In Zinck, an appeal panel found that the Tribunal had failed to afford procedural fairness to an applicant by refusing to admit some of the applicant's documents into evidence and by not making a finding on a material question of fact. The appeal was allowed, and the proceeding was remitted to the Tribunal for rehearing. Ms Casey's counsel said that we should adopt a similar approach in these appeals.

Renfay's Submissions

1. Mr Georges submitted that the Tribunal's decision should be upheld. All three (3) experts had agreed that there was no, or insignificant, moisture in Ms Casey's premises when they inspected the premises before their joint report was prepared, so no issue of injustice to Ms Casey had arisen.

The Owners Corporation's Submissions.

1. Counsel for OSP 586 said that the hearing had been conducted in a fair manner and the appeals should not be allowed. She pointed out that all parties were restricted in the time permitted to lead their evidence and in cross-examination of the other party's witnesses. Counsel for OSP 586 was only permitted 30 minutes to cross-examine Ms Casey, whereas Ms Casey was allowed 45 minutes to cross-examine Ms Van Aalst, the representative of the owners corporation. Further, counsel for OSP 586 (and Mr Georges) had less time to put questions to Mr O'Donnell than Ms Casey was allowed to put questions to the owners corporation's expert, Mr Zakos, and to Renfay's expert, Mr Dahrie.
2. The documents that counsel showed to Ms Casey when cross-examining her, referred to at paragraphs [1683 -1687] in the transcript, were the incoming and outgoing property reports for Ms Casey's lot. In fact, those reports were not tendered, and they did become part of the evidence in the Proceedings.
3. The expert witnesses had each provided their opinion about the water ingress and moisture levels and had then participated in a conclave and prepared a joint report. It was appropriate in those circumstances that at the hearing, the Senior Member adopted the approach of limiting the questions that the parties or their representatives could ask and directed that the experts first ask questions of one another.
4. That approach revealed that there were differences in the methodology adopted by Mr O'Donnell and that adopted by Mr Zakos when interpreting readings obtained from a Tramex meter used to measure moisture levels. It was then not unreasonable, so counsel for the owners corporation submitted, that the Senior Member came to the view, having considered all the evidence, that, where there were differences of opinion, he preferred the evidence of one expert to another, in this case the evidence of Mr Zakos rather than the evidence of Mr O'Donnell.
5. Also, counsel for the owners corporation submitted that the Senior Member's approach to Ms Casey's application for the appointment of a compulsory manager was appropriate, in that the Senior Member did not curtail Ms Casey's questioning of Ms Van Aalst about the alleged dysfunction of the owners corporation and in fact Ms Casey did not refer specifically to s 237 of the SSM Act in her points of claim.

Our Findings in relation to the Primary Decision

1. Grounds 1 - 8 in the Notice of Appeal were not pressed. Thus, we did not need to consider many of Ms Casey's submissions, particularly as to the Tribunal's findings that only items 1 and 6 from Mr O'Donnell's list of defective items should be the subject of a work order and that Ms Casey was not entitled to be compensated for loss of rental income. The grounds of appeal had contended that these findings were made against the weight of the evidence.
2. Instead, given how the appellant's case was conducted by her counsel for the appeals, we were required to examine in detail the way the Tribunal hearing had been conducted. In doing so, we have read the complete transcript. We have also listened to the audio recording.
3. Our overall impression is that the Senior Member gave Ms Casey a fair hearing, except in respect of one matter which we will deal with below.
4. It was apparent that time was short due mainly to the adjournment application which took up the first half of the morning. The expert witnesses only commenced their evidence after lunch, and then followed Ms Casey and Ms Van Aalst, giving their oral evidence. The allocation of time for cross-examination between the applicant and the respondents, respectively, appeared to us to be fair, and, if anything, it favoured Ms Casey.
5. When listening to the audio recording, we did not detect any raised voices. The Senior Member intervened on one or two occasions when Ms Casey commenced or continued to speak when he was speaking, but in our view, he dealt with these interruptions in an appropriate manner.
6. Overall, we are satisfied that the Senior Member did his best to accommodate Ms Casey as a self-represented litigant whilst making it clear that he was not able to give her legal advice. The same was the case with Mr Georges on behalf of Renfay. On several occasions when Ms Casey appeared unable to find the documents she was looking for in her bundle of evidence, the Senior Member gave Ms Casey additional time to look for the documents - see, for example, at paragraph [98] in the transcript.
7. Ms Casey elected to represent herself at the hearing. It is apparent from reading the transcript that she had difficulty understanding procedural matters and some of the legal terminology used - for example, the use of the words "relief" and "return date", but the Senior Member provided relevant explanations when asked.
8. We do not consider that the Senior Member was required to provide Ms Casey with any more assistance on how to run her case than he, in fact, did provide to her. The reality was that Ms Casey had a very difficult case to prosecute. She wished to rely on the primary evidence of her expert witness, but not what her expert witness had agreed to in the conclave and what was contained in the joint report. Therefore, she objected to the tender of the joint report. It was also a complex task to assemble the evidence necessary to bring an application for the appointment of a compulsory manager which satisfied the requirements of s 237 of the SSM Act. To achieve any measure of success it would also have been necessary for her to obtain significant concessions and admissions when cross-examining the expert witnesses and Ms Van Aalst. These forensic hurdles would have tested even experienced counsel.
9. We do not believe that the Senior Member was obliged to, in effect, fulfil that role for her and to act as her advocate. In Reisner v Blatt [2004] NSWCA 22 at [4], the Court of Appeal said at [4]: The parties are entitled to appear unrepresented in proceedings in the Court, and sometimes, because of lack of funds or other reasons, they have no alternative. The Court has a duty to give such persons a fair hearing, and it may be appropriate for the Court to give some assistance to such persons in order to fulfil that duty. However, the Court hearing a case between an unrepresented litigant and another party cannot give assistance to the unrepresented litigant in such a way as to conflict with its role as an impartial adjudicator.
10. In Malouf v Malouf [2006] NSWCA 83 the Court of Appeal said at [94]: It was not incumbent on the trial judge to advise the appellant how he might deal with this situation (receiving an unresponsive answer when cross - examining a witness) … The restraints upon judicial intervention stemming from the adversary tradition are not relevantly qualified merely because one of the litigants is self-represented.
11. In Hanson at [56], as we noted above, Hamill J said that whilst the Tribunal has a duty to provide a reasonable opportunity for each party to be heard and to present their case, he then added that: In Re Association of Architects Ex Parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 63 ALJR 298 at 305, Gaudron J said: As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given a reasonable opportunity to present his case and not that the tribunal ensure that a party takes the best advantage of the opportunity to which he is entitled.

The adjournment application

1. We do not understand Ms Casey, or her counsel, to have submitted that the refusal by the Senior Member to grant an adjournment was an instance of procedural unfairness. That was not referred to in Ground 9 of the Notice of Appeal, nor was it adverted to by counsel in his submissions. Nevertheless, if we are in error in making that assumption, in our view, the adjournment application was dealt with by the Senior Member in an entirely orthodox manner and that his decision was correct.
2. Ms Casey said that she had eight (8) additional documents, or at least, bundles of documents, which she wished to introduce into evidence. The respondents said if the tender of the documents was permitted, the Proceedings would need to be adjourned so that they could consider the documents, and, if necessary, adduce further evidence in reply. The Senior Member was patient with Ms Casey when she identified these additional documents, even though at times she appeared rather unprepared and disorganised. For example, when attempting to tender some photographs which were on her mobile telephone, she handed up the telephone to the Senior Member as she had not made any copies.
3. The Senior Member also allowed her to make quite lengthy submissions in support of her application. He then gave an ex tempore judgement refusing the application, with which we agree. At paragraph [383], the Senior Member said, relevantly: The Registry set down the proceedings for hearing today by notice to the parties on the 26th of October 2022 These proceedings as can be seen have an extensive history and have been set down for hearing for in excess of six months. The section 51 of the Civil and Administrative Tribunal Act provides that the tribunal may adjourn proceedings at any time and place. Now this power in section 5, the exercise of the power in section 51 is to be exercised in the light of the guiding principle in section 36(1) of the Civil and Administrative Tribunal Act 2013 to be applied to section 51 pursuant to subsection 2(a); section 36(2)(a), that guiding principle is to facilitate the just, cheap, and quick resolution of the real issues in the proceedings. I am not satisfied that an adjournment of the proceedings would give effect to the guiding principle, on the contrary it would lead to delay, further expense for the parties. The applicant could and should have applied for leave to adduce further evidence some time ago and has not provided any explanation for her failures to do so. In my view an adjournment would occasion the necessity for further expert evidence together with a further conclave and that would be productive of substantial expense and delay of, in all likelihood, many further months. For these reasons the Application by the Applicant for an adjournment is dismissed.

Consideration of the appeal ground based on procedural unfairness.

1. We now turn to the specific instances of alleged unfairness referred to by Ms Casey's counsel.

The refusal to accept documents into evidence because Ms Casey could not prove service - transcript paragraph [537]

1. The Senior Member marked these documents for identification and invited Ms Casey to pursue the tender if she could prove service. She did not pursue the matter either during the hearing nor in her subsequent written submissions. We find that there was no procedural unfairness.

The ability to ask questions of the expert witnesses - transcript paragraphs [648] - [772]

1. As we have already noted, we believe that the way the Senior Member dealt with the expert evidence was appropriate, and that it was not unreasonable to restrict questions to them from the parties or their representatives. For those reasons, there was no procedural unfairness.

The rejection of Ms Casey's questions to Mr Zakos - transcript paragraphs [1120] - [1127]

1. When rejecting the first of these questions the Senior Member said that Ms Casey could only ask Mr Zakos about what he observed. The rejection of the subsequent questions follows that same ruling. We are not satisfied that there was any procedural unfairness.

The time allowed for Ms Casey to cross examine Mr Zakos - transcript paragraphs [1139] - [1155]

1. Ms Casey commenced her cross-examination of Mr Zakos and Mr Dahrie at 1.01pm. When the Senior Member said that she had 10 minutes remaining to conclude her questions, it was 1.11 pm, and 1.14 pm, when he said that she had 5 minutes left. Thus, the Senior Member reduced Ms Casey's cross-examination time from 5 to 3 minutes between these two interventions. However, he then appeared to allow her slightly more than 5 minutes to conclude her questions, so that in total she received the same amount of time as she had initially been offered - which as we have noted, was more than the time afforded to counsel for the owners corporation to ask questions of Mr O'Donnell. Also, when listening to the audio recording, it is apparent that there were periods of silence when Ms Casey appeared to be looking through her documents to formulate her next question. Once again, we are not satisfied that there was any procedural unfairness.

The cross-examination of Ms Casey on documents that were not in evidence and Ms Casey's comment that had she known that this was permitted, she would not have asked for an adjournment.

1. The inference to be drawn from this comment is that Ms Casey's objective was to use the documents which were the subject of the adjournment application only for the purpose of putting them to the respondents' witnesses under cross-examination. That reflects a misunderstanding of the rules of evidence. If Ms Casey had adopted this course, after she had shown the documents to the witnesses, and received answers to her questions which she believed were beneficial to her case, she would have been obliged to seek to tender them. The respondents would then have been able to object to the tender on the same basis that they had objected in the adjournment application.
2. Furthermore, the first of Ms Casey's additional documents, the comparative Sydney rainfall records in 2022 and 2023, was not a matter of contention. Each expert witness dealt with this issue in their evidence and under cross-examination.
3. For those reasons, we find there was no procedural unfairness.

Additional examples of alleged absence of procedural fairness not referred to specifically by Ms Casey's counsel (although set out in Ground 9 of the notice of appeal)

1. Firstly, it is said that the appellant's right to cross-examine Renfay's Mr Georges was not fulfilled at the 28 April 2023 hearing, as per a written request prior to (and during) the hearing consistent with NCAT's guidelines. We do not agree that this raises an issue of lack of procedural fairness. Mr Georges appeared as the representative of Renfay. He did not make a witness statement and so there was no basis on which he could be cross-examined. The Senior Member made this clear to Ms Casey at paragraph [1283] in the transcript.
2. Secondly, it is said that Ms Casey's new evidence was rejected at the 28 April 2023 hearing, but the owners corporation's new evidence was accepted on two occasions at the hearing without notice. We take the reference to the appellant's new evidence to be the documents the subject of the adjournment application which we have already referred to. The new evidence from the owners corporation which was said to be accepted "without notice" is not particularised, but paragraph 22 in Ms Casey's written appeal submissions says that: At the hearing dated 28 April 2023 the Owners Corporation adduced new evidence without notice including an email dated 11 April 2023 from Josh Cordingley and two different approximately 70 page documents to cross -examine the Appellant- paragraph [688] in the transcript.
3. Paragraph [688] of the transcript refers to the email from Mr Cordingley, which was admitted into evidence, noting the objection of Ms Casey. However, at [686] counsel for the owners corporation, when tendering the document, said that it had "only been served on the Applicant last Wednesday", so to that extent it was not entirely a new document. In any event the email relates to Ms Casey's claim for loss of rent, and it does not appear to have played any part in the Senior Member's decision on this issue. At paragraph [135] in the Principal Decision, the Senior Member records he was not satisfied that Ms Casey's own evidence established her claim. That finding was open to the Tribunal. The Senior Member did not refer to any material tendered by the owners corporation. There is also no mention in the discussions between the parties and the Senior Member at or around paragraph [688] in the transcript of a tender of two (2) 70 page documents by the owners corporation.
4. At paragraph [824] of the transcript, the Senior Member had requested that the Tramex meter manual be tendered. Each of the expert witnesses had used the meter when taking their moisture readings but there was disagreement as to the appropriate methodology to adopt. In those circumstances, it was appropriate and uncontroversial that the manual be included in the evidence.
5. For the sake of completeness, there is a reference at paragraph [609] in the transcript to counsel for the owners corporation stating that the handwritten statements of a Mr Lamont comprised "additional documents". However, when the preceding paragraphs are read, it is apparent that the documents were "additional" only in the sense that they did not form part of the documents annexed to Ms Van Aalst's statement. They were always contained in the respondent's tender bundle.
6. As we have noted, the incoming and outgoing property reports which counsel showed to Ms Casey, were never tendered. These documents may be the two (2) 70 page documents to which Ms Casey has referred in her written submissions.
7. Thirdly, Ms Casey contended in Ground 9 of the notice of appeal that the Primary Decision gave no weight to key evidence introduced by her including a non-compliance list dated 2 December 2022 being evidence of prolonging unnecessarily, the Proceedings, and disadvantaging the Appellant both financially and otherwise. This ground is, in substance, not an illustration of a lack of fairness during the hearing. Rather it is an allegation that the Senior Member failed to have regard to the strength of the documents submitted by Ms Casey which were in evidence. This includes the non-compliance list to which she refers. We do not consider that the allegation comes within the parameters of the appeal limited to procedural fairness, as outlined by her counsel, as it does not raise a question of law and we do not propose to consider it further.
8. The final particular of alleged procedural unfairness which Ms Casey gives in Ground 9 of the notice of appeal, is put this way: The Original Decision erred with the incorrect statutory warranty time limit, which was never disputed throughout the proceedings or at the hearing thus confronting the Appellant with an adverse decision after the conclusion of the case without opportunity to respond.
9. In the Primary Decision, as noted above, the Senior Member had formed the view that the remedial works carried out by Renfay had been completed before 21 May 2020, that is, more than two (2) years before Ms Casey had brought her claim. In coming to this view, the Senior Member did not accept that it was an agreed fact that the works were not completed until late May 2020 because of an admission in Renfay's points of defence - see paragraph 89 in the Principal Decision, nor that it was determinative that this admission was recorded in procedural orders made by the Tribunal on 16 June 2022.
10. During the hearing the Senior Member did not raise with Ms Casey the likelihood that he might find that the works had been completed at this earlier date. Nor did he raise the matter with her subsequently in order that she might deal with it in her written submissions. The admission in the pleadings and the notation on the Tribunal's file, entitled Ms Casey to assume that she did not have to provide any evidence to establish this date. Making the finding that the relevant date was earlier than 21 May 2020, without offering her the opportunity to provide evidence to the contrary, demonstrates, in our view, a lack of procedural fairness in relation to this issue.
11. Further in her subsequent submission to the Tribunal, Ms Casey said that had she known that the Senior Member was contemplating making this finding, she could have produced photographs showing that the works were incomplete as of 21 May 2020, and these were not the same photographs that she had tendered in support of her adjournment application.

What follows if a failure to afford procedural fairness has been identified by the Appeal Panel?

1. As we understood counsel for Ms Casey's submission, one finding of procedural unfairness is itself sufficient for the Proceedings to be remitted for a fresh determination, and it is not the function of the Appeal Panel to enquire whether the failure resulted in any miscarriage of justice or even a practical injustice. Counsel argued that the Appeal Panel is not obliged to consider whether the failure may have deprived the appellant of a different and more favourable outcome.
2. We do not believe that the orders remitting the proceedings for further determination in Hanson, J's Absolute Services and Zinck necessarily lead to that conclusion. Counsel did not refer us to any other authorities. In Zhang v Andrew Pine Furniture Pty Ltd [2004] NSWCA 250 (Zhang), the Court of Appeal upheld an appeal on the grounds that the trial judge's reasons were inadequate and that this amounted to a failure to afford procedural fairness to the appellant. At [31] Giles JA then said, relevantly: It does not follow that new trial is required. If on appeal it can be seen that the only conclusion open on the evidence at the trial was the conclusion reached by the trial judge, then notwithstanding an inadequate statement of reasons a new trial will not be ordered. Apart from those somewhat analogous circumstances in Zhang, we have not been able to find any authorities directly on the point.
3. The proposition advanced by Ms Casey's counsel is, in our opinion, too broad. For the entire proceedings to be remitted, the procedural unfairness must relate to the outcome of the Proceedings as a whole, or at least to have been determinative of one or more of the claims made in the Proceedings. That is not the case here. The finding had no impact on the Senior Member's decisions in relation to the owners corporation, so there is no basis for remitting the claims against OSP 586.
4. In relation to the claims against Renfay, a rehearing would not allow Ms Casey to reopen her case that all the items in Mr O'Donnell's list of defects should be included in a work order. That ground of appeal was abandoned. The rehearing would be limited to whether Ms Casey was entitled to a work order against Renfay for items 1 and 6 only.
5. Furthermore, even in relation to this issue, the procedural unfairness only goes to the Senior Member's finding that the 2 year period had elapsed. The Senior Member also rejected Ms Casey's claim because she did not come within the definition of "non-contracting owner" in the HB Act - see paragraph [98] in the Primary Decision.
6. The second finding is, in our view, fatal to Ms Casey's claim on this issue. The contract for the relevant remedial works was between OSP 586 and Renfay. Ms Casey was not a party to it. The Senior Member also held that the contract provided for the work to be carried out only to the common property of the strata scheme. This was a critical finding as the definition of "non-contracting owner", in the Schedule to the HB Act requires a non-contracting owner to be "the owner of the land" on which the relevant contract for residential building work is carried out, even if that person is not a party to the contract. Ms Casey was not, and could never be, an owner of the common property. Subsection 24(2) of the Strata Schemes Development Act 2015 (NSW) (SSD Act) provides that the common property in relation to a strata scheme, vests in the owners corporation, in this case, in OSP 586.
7. Ms Casey maintained in her submissions to the Tribunal and in the appeals, that there was building work carried out to her lot property, as well as to the common property, but she did not provide any supporting evidence for that contention. Her counsel said the same in his submissions, but when invited by us to provide evidence, he was unable to do so. We also asked Mr Georges for his opinion, and he said that all the items 1-6 in Mr O'Donnell's list of defects involved work to the common property only.
8. Ms Casey's position appears to be based upon a misconception of what constitutes common property. Common property is defined in the SSD Act as follows: in relation to a strata scheme or a proposed strata scheme, (it) means any part of a parcel that is not comprised in a lot (including any common infrastructure that is not part of a lot).
9. 'Lot' is defined in the SSD Act as: In relation to a strata scheme, means any one or more cubic spaces shown as a lot on a floor plan relating to a scheme, but does not include any common infrastructure, unless the common infrastructure is described on the plan, in the way prescribed by the regulations, as a part of a lot.
10. Item 1 on Mr O'Donnell's list of defects relates to the removal and replacement of the roof capping and item 6 to the further repairs to the bathroom ceiling due to the leaks in apartment 20 above Ms Casey's lot property. The roof capping work clearly relates to the common property as the roof of the building is not contiguous with her lot property. The work to be carried out to the bathroom ceiling relates to the common property also and does not impact on the Ms cubic space in Ms Casey's lot property.
11. For these reasons we see no basis for remitting to the Tribunal's Consumer and Commercial Division, even this aspect of Ms Casey's claim for rehearing. There is no further evidence that she could put forward which would alter this conclusion and the claim cannot succeed. Further, there would be no utility in the Tribunal making orders against Renfay in relation to items 1 and 6, as the same order had been made against the owners corporation in the Work Order Decision and presumably the works have now been completed.

Our Decision in relation to the Appeal against the Primary Decision

1. We have therefore decided that the entirety of Ms Casey's appeal against Renfay and OSP 586 for lack of procedural fairness, should be dismissed.

Our Decision in relation to the Appeals against the Work Order Decision and the Costs Decision

1. These decisions were made consequential upon the Primary Decision, and are ancillary decisions, as defined in s 4 of the NCAT Act. Subsection 80(2)(b) of the NCAT Act provides that in an internal appeal, an ancillary decision may also be appealed as of right on a question of law or with the leave of the Appeal Panel on any other grounds.
2. The grounds of appeal restate the grounds of appeal against the Primary Decision. They do not contain a separate ground alleging procedural unfairness in relation to the hearing of these appeals, which were decided on the papers. Thus, no question of law arises, and Ms Casey would need to seek leave to appeal.
3. We find that the appeals also do not assert any additional matters of fact, or of mixed fact and law, to justify granting leave, other than those matters contained in the appeal grounds against the Primary Decision. In other words, if the appeal against the Primary Decision fails, there is no claim that the Work Order Decision or the Costs Decision should nevertheless be varied in some fashion. As we have found that the appeal in relation to the Primary Decision should be dismissed, the appeals from the Work Order Decision and the Costs Decision must be dismissed also.

Costs

1. Ms Casey has been unsuccessful in her appeals. Our preliminary view is that 'costs follow the event', and that in the exercise of our discretion as to costs under r 38A of the NCAT Rules, Renfay and OSP 586 would be entitled to their costs of the appeals on the ordinary basis.
2. Our preliminary view as to the costs of the appeals is subject to any other costs application which may be made by the parties.
3. We have made orders and directions as to costs, accordingly.

Orders

1. The Appeal Panel's orders are: 1. Appeal No 2023/00308743 is dismissed. 2. Appeal No 2023/00336006 is dismissed. 3. Appeal No 2023/00335992 is dismissed. 4. Subject to order 5, Anne Casey is to pay Renfay Projects Pty Limited and The Owners - Strata Plan 586's costs of the appeal on the ordinary basis as agreed or assessed in accordance with the applicable costs' assessment legislation. 5. Should any party seek a different appeal costs' order, the following directions apply:
2. The applicant for costs (costs' applicant) must file and serve any application with its written submissions on that issue only (no more than 5 pages) within 14 days of the date of these orders.
3. Upon filing an application in accordance with order 5(a), order 4 will cease to have effect.
4. A costs' respondent must file and serve any written submissions in response to the issue of costs only (no more than 5 pages) within a further 14 days of receipt of the costs' applicant's submissions.
5. A costs' applicant may file and serve a written submission (no more than 3 pages) strictly in reply to a costs' respondent's submission within a further 7 days of receipt of the costs' respondent's submissions.
6. In any such submissions the parties are to address the matter of whether pursuant to the provisions of the Civil and Administrative Tribunal Act 2013 NSW, s 50(2), the Appeal Panel should dispense with a hearing on the issue of the costs of the appeal, so that the issue is decided on the papers lodged with the Appeal Panel and with appearances of the parties not required.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2024