Chen v The Owners –Strata Plan No 55792

1. We see no error by the Senior Member. In any event, we would not grant leave to appeal this interlocutory decision involving a matter of practice and procedure, in particular because the Senior Member left it open to the appellant to reagitate her adjournment application at the hearing on 19 May 2025.

Ground 4: The Tribunal erred in refusing the appellant's application to adjourn the Renewal Proceedings at the hearing

1. The third appeal ground appears to be the Tribunal's refusal to adjourn the hearing 19 May 2025.
2. At [30] of the Renewal Decision, the Tribunal refers to a "lengthy dialogue" about the adjournment application.
3. We have set out above our summary of the Renewal Decision where this issue was dealt with. We have now examined the transcript of the Tribunal hearing which had been filed by the respondent. When the "dialogue" is read, in conjunction with par [30] of the Renewal Decision, we see no error by the Tribunal, which identified the correct legal principle and gave more than adequate reasons for refusing the application.
4. In those circumstances, this round of appeal is rejected.

Ground 5: the decision was not fair and equitable

Ground 6: The decision was against the weight of evidence

1. These grounds can be considered together.
2. The appellant's submissions are set out above respectively at [9] and [10].
3. We see nothing of substance in any of these submissions, which are generalised complaints.
4. As countless decisions of the Appeal Panel have stated, and as we have stated, leave to appeal is only granted for appeals which involve an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
5. We are not satisfied that the matters relied by the appellant in relation to either of these grounds satisfy these tests.

Ground 7: Significant new evidence is now available that was not reasonably available at the time of the hearing

1. This ground is misconceived.
2. The purpose of cl 12 of Sch 4 of the NCAT Act is to allow an appellant to appeal in circumstances where they may have suffered a substantial miscarriage of justice because significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
3. An example can be seen in Saif v Sharma [2022] NSWCATAP 46, where the Appeal Panel allowed an appeal and remitted the matter to the Tribunal. The new evidence was credit card receipts, described by the Appeal Panel as "significant because they are potent evidence that the selling entity was [Business Empower Australia Pty Ltd] and not the appellants".
4. Whether evidence was "not reasonably available" at the time of the hearing is not considered by reference to any subjective explanation from the party seeking leave to rely on it, but, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained it: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]; recently applied by the Appeal Panel in Ashwood v Medlock [2025] NSWCATAP 209 at [36].
5. In any event, what the appellant wishes to rely on is not new evidence, or evidence at all. As appears at [11], the appellant is instead asserting criminal misconduct by the respondent and the respondent's lawyer.
6. This is not the proper forum to agitate such claims.

1. Either in her documents, or at the appeal hearing, the appellant identified a number of other grounds of appeal. These were:

(1) the Tribunal was biased (Ground 8);

(2) the Tribunal denied the appellant procedural fairness (Ground 9);

(3) the respondent concealed evidence and misled the Tribunal (Ground 10).

1. These grounds of appeal can be considered together.
2. We enquired of the appellant whether she was alleging that the Tribunal was actually biased, or if it acted in such a way that showed apprehended bias. The appellant indicated that she thought the Tribunal demonstrated apprehended bias.
3. We asked her how that apprehended bias was demonstrated, and she said that the Senior Member had not listened to her, and cut off her answers. This was also the substance of the appellant's claim that she was denied procedural fairness.
4. The appellant did not provide us with any references in the transcript where such an exchange/s allegedly occurred. While it is not our role to do so, we have perused the transcript and see no exchanges that substantiate the appellant's claims, either of apprehended bias or that the Tribunal denied her procedural fairness. On the contrary, a fair reading of the transcript demonstrates that the Senior Member allowed the appellant to present her case, and showed, in our view, considerable patience in conducting the hearing.
5. A claim of bias raises a question of law (Cusumano at [32(3)], as does a claim of a denial of procedural of fairness (Prendergast at [39(4)]). We see no error on either of these questions of law and accordingly these grounds of appeal are dismissed.

1. The final ground of appeal is that the respondent concealed evidence and mislead the Tribunal. We see nothing of substance in the allegation and no evidence to support it. Such a matter requires leave to appeal. As we see no error, we refuse leave to appeal.

1. Finally, there remains for consideration the 12 grounds of appeal in the appellant's Appeal Response (II) and set out above.
2. Grounds numbered 1 to 11 have nothing whatsoever to do with the Renewal Decision. Ground 12 relates to costs and is not a proper ground of appeal.
3. As we stated above, all these grounds of appeal are misconceived.

1. The respondent has already indicated that it seeks its costs in the event that the appellant was unsuccessful. It stated in its submissions that costs should follow the event by force of rr 38 and 38A of the NCAT Rules.
2. The respondent noted the appellant had sought orders in the Renewal Proceedings that the respondent pay her $182,928.53. Therefore, the Tribunal considered therefore that r 38(2)(b) applied (Renewal Decision at [90]) and "[i]n light of the applicant's almost complete failure" (Renewal Decision at [95]), the appellant should pay the respondent's costs of the Renewal Application.
3. At the appeal hearing, the respondent noted that in the appeal the appellant had sought an order that the respondent pay her $192,033.70, and that therefore this was an additional basis for an award of costs in its favour if the appellant was unsuccessful.
4. Clearly, the appellant has been unsuccessful.
5. The Tribunal found that the relevant costs rule was that found in r 38 of the NCAT Rules. Therefore, by application of r 38A of the NCAT Rules, that is the same costs rule for the costs of the appeal.
6. Our preliminary view is that the appellant should pay the respondent's costs as agreed or assessed, in accordance with the relevant costs legislation.
7. Either party seeking some other order, may file submissions (and if necessary evidence) within 14 days of the publication of these reasons. The other party may respond within a further 14 days.
8. We propose to deal with costs on the papers and without a hearing: Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 at [85]. Any party opposing that approach must address that issue in their submissions.
9. Submissions are to be limited to five pages.

(1) To the extent that the appeal raises a question of law, the appeal is dismissed.

(2) To the extent that the appeal raises other errors, leave to appeal is refused, and the appeal otherwise dismissed.

(3) Either party opposing an order that the appellant pay the respondent's costs as agreed or assessed, in accordance with the relevant costs legislation, may file submissions (and if necessary evidence) within 14 days of the publication of these reasons.

(4) The other party may respond within a further 14 days.

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.