Choi v The Owners- Strata Plan No. 52482

1. In the substantive proceedings between the parties at first instance the Tribunal made an order on 9 February 2024 under the Strata Schemes Management Act 2015 (NSW) (SSMA) for a common property rights by-law. The Tribunal ordered Mr Choi to carry out further works and to ensure that the consent of the local council was obtained in relation to those works within three months, failing which Mr Choi was ordered to remove the works which he had already installed and to restore the common property to its previous state.
2. The Tribunal also ordered each party to bear its own costs unless there was an application for an alternative costs order, in which case the Tribunal made directions for the lodgment of submissions. The Owners Corporation subsequently made an application for an alternative costs order and lodged supporting submissions.
3. Meanwhile, on 7 March 2024 Mr Choi lodged an internal appeal against the Tribunal's decision of 9 February 2024 in proceedings number 2024/0087516.In those proceedings the Appeal Panel ordered a stay of the orders made by the Tribunal on 9 February 2024 pending the hearing of the appeal.
4. Presumably because of the stay ordered by the Appeal Panel, Mr Choi did not lodge submissions with the Tribunal in relation to the costs at first instance. It also appears that due to an administrative oversight by the Tribunal, the Tribunal Member deciding the application for costs was not made aware of the stay ordered by the Appeal Panel.
5. On 14 June 2024 the Tribunal made an order for Mr Choi to pay the costs of the Owners Corporation at first instance "in the ordinary manner and on an indemnity basis from 10 November 2023 as agreed or assessed". The Tribunal's reasons noted that the Owners Corporation had provided submissions but that nothing had been received from Mr Choi within the time specified in the orders.
6. Mr Choi then lodged a second appeal to the Appeal Panel in proceedings 2024/00253403 against the orders for costs made by the Tribunal on 14 June 2024. In relation to that appeal, the Appeal Panel made the following orders on 24 July 2024:

1 By consent, the decision of the Tribunal on 14 June 2024 in proceedings 2023/00380510 is set aside, noting that it was made without regard to the stay in appeal proceedings 2024/00087516.

2 The appeal is otherwise dismissed in accordance with Section 55 (1)(a) of the Civil and Administrative Tribunal Act 2013 as the Appellant has withdrawn the application.

1. We will say more in due course about the circumstances which led to the making of these orders.
2. On 19 November 2024 the Appeal Panel dismissed the appeal in proceedings 2024/0087516 by Mr Choi in relation to the substantive dispute : Choi v The Owners Strata Plan No. 53482 [2024] NSWCATAP 233 [1]. The Appeal Panel also made directions for the parties to lodge submissions in relation to costs.
3. On 10 January 2025 the Appeal Panel dismissed an application by the Owners Corporation for the costs of the appeal: Choi v The Owners- Strata Plan No.53482 ( No 2) [2025] NSWCATAP 10 [2]. In its reasons the Appeal Panel stated as follows at [7]:

There was some confusion in the costs submissions submitted by the parties. Some of the submissions filed by the parties referred to the costs decision by the Tribunal at first instance. Prior to the appeal decision, the costs decision of the Tribunal at first instance was set aside, as it was apparently made without consideration of all the costs submissions filed by the parties. The Appeal Panel has no power to reconsider the issue of costs of the Tribunal proceedings, as there was no costs decision of the Tribunal that was the subject of an internal appeal under s 80 of the NCAT Act ( LMA Contractors Pty Ltd v Changizi [2017] NSWCATAP 145 at [17]- [20]). Any application for costs at first instance is a matter to be agitated before the Tribunal, not the Appeal Panel.

1. Following this decision of the Appeal Panel, the Owners Corporation applied to the Tribunal for an order for the costs of the proceedings at first instance. On 25 January 2025 the Tribunal made directions for the parties to lodge documents and make submissions in relation to the costs of the proceedings at first instance in the Tribunal.
2. The orders and directions of the Tribunal on 25 January 2025 were as follows:

1 1. The applicant the owners - Strata plan number 52482, is to launch with the Tribunal, and give to the other party the documents they rely on on an application for costs together with submissions that the costs application can be heard without a hearing in person pursuant to s50(2) of the NCAT Act by 31 January 2025.

2. Any documents in reply including submissions that the costs application can be decided on the submissions are to be lodged with the Tribunal and given to the applicant the owners - Strata plan number 52482, by 14 February 2025.

3. The applicant is to file and serve it submissions in reply by 28 February 2025.

1. Mr Choi lodged a Notice of Appeal on 29 January 2025 seeking to challenge the directions made by the Tribunal for the lodgment of documents and submissions in relation the application by the Owners Corporation for the costs of the Tribunal proceedings at first instance (the Directions).

1. The grounds of appeal stated by Mr Choi in the Notice of Appeal recount a chronology of what had occurred in the proceedings. The grounds of appeal state that the Tribunal erred in making the Directions because the original orders for costs at first instance were set aside by the Appeal Panel and no orders for costs were subsequently made by the Appeal Panel.
2. The grounds of appeal include the following statement:

There is no right at common law for the owners corporation to request the previous Tribunal (a lower court) to make another fresh new - again orders on the costs against the decision of the Appeal Panel made on 24 July 2024 (a higher court).

1. The Owners Corporation lodged a Reply to Appeal on 11 February 2025. The Reply to Appeal contended that Mr Choi had not identified any error of law associated with the Directions nor any substantial miscarriage of justice.
2. The Reply to Appeal also contended that the Directions "do not constitute an internally appealable decision to the Appeal Panel".

1. At the hearing of the appeal Mr Choi restated his grounds of appeal and in essence submitted that the decisions of the Appeal Panel had finally concluded all of the issues of costs arising out of the proceedings.
2. Mr Neville, the secretary of the Owners Corporation, submitted that Mr Choi was attempting to prevent its costs application from being heard, yet the costs of the Tribunal proceedings at first instance had never been determined.
3. The Owners Corporation supplied the sound recording and a transcript of what had occurred before a single member of the Appeal Panel on 24 July 2024 which led to the original costs orders at first instance being set aside by consent. At this hearing Mr Neville also represented the Owners Corporation. Mr Neville submitted that it was clear from what had occurred on this occasion that the Owners Corporation was not to be prevented from reagitating the question of costs at first instance if it saw fit after the appeal had been determined.
4. The transcript records the following exchanges:

Mr Neville: Of course so we, our position is obviously we support the cost decision but we understand that Mr Choi has the right to make his submissions and we also understand that this might be a moot point depending on the result of the appeal.... I guess my, my question to you based on what you have just heard is, if we do agree to set aside that judgment on the cost matter, that has to be reheard, is that, is that correct? That we can just resubmit the same thing?

Member: Yes you could, you, and it may be of course that if the Appeal Panel changes the substance of the primary decision that pays take a different view... I can't predict that but certainly it doesn't prevent that being decided later, it would just set aside that decision about the costs made without Mr Choi's submissions.

Mr Neville:... It just seems like a much more cost effective and um efficient situation to set, set it aside on condition that we are allowed to resubmit once, assuming if the appeal goes our way that we have been permitted to resubmit our application and

Member:... I would not need to make that condition Mr Neville that is the automatic outcome of having it set aside is that it needs to be redetermined. I would make a notation that it was determined without Mr Choi's submissions and needed to be redetermined.

Member: Mr Choi do you have any questions about what I have explained is that a satisfactory outcome from your perspective?

Mr Choi: Um, can I ahh, proceed to ahh, invalid invalidate the decision rather than outside or something like this

Member: So any decision that you had to pay costs would no longer be there

Member: It would have to be decided again later if the parties still press it after the other appeal is done

Member: But it would not stop you running any of your arguments about why you should not have to pay costs no matter what

Member: And it would have to be re-decided with everybody's submissions

Mr Choi: Ok all right yeah Ok I understand so it's that Tribunal decision doesn't effective anyway, is it correct?

Member: That's right, if I set it aside, that's right

1. In relation to the contention in the Reply to Appeal that the Directions did not constitute an internally appealable decision, Mr Neville said that the Directions were not themselves a decision but simply directions which would lead to a decision being made in future. When pressed further about this point Mr Neville said that it had been drafted by a lawyer and that this was the extent to which he could explain the contention. Mr Neville was not able to point to any decisions which might be relevant in determining if the Directions were an internally appealable decision.

1. Section 80 of the Civil and Administrative Tribunal Act (2013) (NSW) (NCAT Act) relevantly provides:

(1) an appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made.

(2) Any internal appeal may be made:

(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

1. The first issue which needs to be considered is whether the Directions are an internally appealable decision. If they are, then as the Directions are an interlocutory decision of the Tribunal at first instance, the next issue is whether leave should be granted to bring an appeal in relation to them.

1. Section 32 (5) of the NCAT Act defines an internal appeal as an appeal to the Tribunal against an internally appealable decision. Section 32(4) defines an "internally appealable decision" as a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction. Section 32(1)-(3) provide:

(1) The Tribunal has internal appeal jurisdiction over:

(a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and

(b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section.

(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its internal appeal jurisdiction:

(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,

(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.

(3) However, the internal appeal jurisdiction of the Tribunal does not extend to:

(a) any decision of an Appeal Panel, or

(b) any decision of the Tribunal in an external appeal, or

(c) any decision of the Tribunal in proceedings for the exercise of its enforcement jurisdiction, or

(d) any decision of the Tribunal in proceedings for the imposition of a civil penalty in the exercise of its general jurisdiction.

1. Section 29 (3) of the NCAT Act defines a "general decision" of the Tribunal as a decision of the Tribunal determining a matter over which it has general jurisdiction. Section 29 (1)- (2) provide:

(1) The Tribunal has general jurisdiction over a matter if:

(a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and

(b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.

(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction:

(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,

(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.

1. Section 5(1) of the NCAT defines "decision" in the following terms:

(1) In this Act, decision includes any of the following:

(a) making suspending, revoking or refusing to make an order or determination,

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,

(c) issuing, suspending, revoking or refusing to issue a licence, authority, or other instrument,

(d) imposing a conditional restriction,

(e) retaining, or refusing to deliver up, an article,

(f) doing or refusing to do any other act or thing.

1. Section 4(1) of the NCAT defines an "ancillary decision" to include "a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, consequential on, a decision determining proceedings, including... a decision concerning the awarding of costs of proceedings".
2. We have identified two decisions of the Appeal Panel which have considered whether directions made by the Tribunal are an internally appealable decision. In Zonnevylle v Minister for Education & Early Childhood Learning [2021] NSWCATAP 398 the issue did not require determination but the Appeal Panel made the following remarks:

24 Because the direction made on 14 May 2021 for the parties to make a submission is of no continuing operative effect, it is unnecessary for us to consider the Respondent's submission to the effect that the direction is in fact not an appellable decision. Nevertheless, we are inclined to the view that a direction for the parties to make a submission is not a decision within the meaning of the definition of "decision" contained in s 5 of the NCAT Act. That section defines a decision in inclusive terms and the direction does not, in our view, respond to any of the kinds of decisions described in subsections (1) (a) to (f). Subsection (g) includes the definition of a decision as "doing or refusing to do any other act or thing". In our view a direction to make a submission is not a decision requiring a party to do an act of thing. Rather it is a statement that the party has an opportunity to be heard, being a preliminary step before a decision is made

25 We note that the word "direction" is contained within s 5(1)(b). By that subsection a decision includes "giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission". We remain of the view that that subsection does not include a direction requiring a party to make a submission but is intended to include a direction of a more substantive nature. That is apparent from the other kinds of decisions referred to in the subsection, namely giving, suspending, revoking or refusing to give a certificate, approval, consent or permission.

1. These remarks in Zonnevylle were referred to with approval by the Appeal Panel in Inman v Commissioner of Police, NSW Police Force [2023] NSWCATAP 297. In that matter at [32] the Appeal Panel described the issue for determination as " whether the decision to direct the parties to file and serve material is an internally appealable decision from which the appellant can appeal". At [33] the Appeal Panel set out the remarks in Zonnevylle at [24]-[25] and then continued at [34]:

We agree with that analysis and are of the view that the making of the timetabling orders does not constitute a "decision" within the NCAT Act. If it does, we do not consider that it is an "internally appealable decision" within the NCAT Act, because it is unlikely that the legislature intended to confer a right of appeal from timetabling orders (even with a leave requirement).

1. With respect, we doubt the correctness of the analysis in these two cases. The first question is whether the Directions were a decision of the Tribunal. Section 5(1) of the NCAT Act defines "decision" in very broad, inclusive terms. A "decision" includes the Tribunal " (b) giving...a...direction" and " (g) doing or refusing to do any other act or thing". The terms of the definition provide no support for a requirement to make an evaluative assessment of the substantiveness of the direction before it should be considered to be a decision. In relation to sub-paragraph (g), the question is not whether the act or thing done or refused by the Tribunal imposes a requirement on a party. It simply needs to be an act or thing done or refused by the Tribunal. We consider the better view to be that the Directions were a decision of the Tribunal within the meaning of section 5 of the NCAT Act.
2. As to whether the Directions are an internally appealable decision within the meaning of section 32 of the NCAT Act, the reasoning in Inman was simply that it was unlikely that the legislature intended to provide an opportunity to appeal from timetabling orders, even though leave would be required. However this interpretation is not supported by the language employed in section 32 and other relevant sections of the NCAT Act.
3. The issue raised by section 32(4) is whether the Directions were a decision over which the Tribunal has internal appeal jurisdiction. By virtue of section 32(1)(a), that relevantly turns in this case on whether it is a decision made by the Tribunal in proceedings for a general decision. To determine what is a general decision requires analysis of section 29 of the NCAT Act. Section 29(3) defines a general decision as a decision determining a matter over which the Tribunal has general jurisdiction. Section 29(1)(a) relevantly identifies that the Tribunal has general jurisdiction if legislation (other than the NCAT ACT or the procedural rules) enables the Tribunal to make decisions or exercise other functions of a kind specified by the legislation in respect of that matter. In these proceedings between the parties, the Tribunal was exercising general jurisdiction under the SSMA.
4. It is to be noted that in making the Directions, the Tribunal was not exercising its general jurisdiction under section 29(1)(a), but its jurisdiction under section 29(2)(a) to make ancillary and interlocutory decisions in proceedings for the exercise of its general jurisdiction. However the question raised by section 32(1) is whether the Directions were a decision by the Tribunal in proceedings for a general decision [our emphasis]. The Tribunal proceedings were proceedings relating to relief sought under the SSMA and therefore in our view were proceedings for a general decision. We accordingly consider the better view to be that the Directions were an internally appealable decision. None of the exceptions in section 32(3) of the NCAT Act apply.
5. However it is unnecessary to decide whether the Directions are an internally appealable decision, which would involve a consideration of whether the relevant analysis in Zonnevylle and Inman is clearly wrong: see Rittau v Commissioner of Police, New South Wales Police Service [2000] NSWADT 186 at [63].That is because we are very firmly of the view that even if the Directions are an internally appealable decision, leave to appeal should be refused. It is also undesirable to decide the question because the issue was not properly argued in this appeal.

1. If the Directions were a decision of the Tribunal, they were an interlocutory decision of the Tribunal at first instance. As a result it would be necessary to grant leave to appeal under section 80(2)(a) of the NCAT Act.
2. The Act does not in terms identify the criteria to be taken into account in determining whether to grant leave to appeal from an interlocutory decision of the Tribunal at first instance. However the guiding principle set out in section 36 (1) of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings is clearly contextually relevant, as the Appeal Panel noted in Bratby v Blain [2014] NSWCATAP 28 at [13]. In that case the Appeal Panel stated (at [15]) that a relevant principle was to take into account the degree of injustice that would be suffered as a consequence of the order or direction.
3. In Champion Homes Pty Limited v Guirgis [2018] NSWCATAP 54 at [35], the Appeal Panel, whilst noting that it was unnecessary and unwise to set out rigid rules of practice or exhaustive criteria, identified a number of principles relevant to a grant of leave to appeal from an interlocutory decision, including that :
   • circumstances justifying leave may be an error of principle resulting in substantial injustice;
   • there is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights;
   • where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal;
   • restraint should be applied in reviewing a decision on a matter of practice and procedure; and
   • leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered.
4. Applying the principles in Bratby and Champion Homes, we consider that the application for leave to appeal by Mr Choi is without merit and should be refused. The Directions were routine procedural directions. They did not determine any substantive rights. There is no injustice to Mr Choi in requiring him to comply with the Directions. If Mr Choi was right in contending that the Appeal Panel had finally determined the issue of the costs of the proceedings at first instance, then he could make submissions to that effect for the Tribunal to consider in determining the matter.
5. Moreover, a consideration of the history of the proceedings relating to the costs at first instance demonstrates that Mr Choi is in fact wrong in submitting that the Appeal Panel has determined the issue. On 24 July 2024 the Appeal Panel set aside by consent the orders of the Tribunal in relation to the costs at first instance. In so doing, the Appeal Panel made it very clear that this would not preclude a fresh application to the Tribunal for the costs at first instance, depending on the outcome of the appeal. On 10 January 2025, in determining the costs of the appeal, the Appeal Panel stated at [7] that it was not determining the costs at first instance and that any application for costs at first instance was a matter to be agitated before the Tribunal, not the Appeal Panel.

1. Neither party made submissions in relation to the costs of this appeal. During argument on the hearing of the appeal it emerged that at least one of the parties may have incurred legal costs in relation to the appeal. We will make directions to enable an application for costs for to be made if either party wishes to apply.

(1) To the extent required, leave to appeal is refused.

(2) Appeal dismissed.

(3) If either party wishes to apply for a costs order in relation to this appeal they must make an application for costs with supporting written submissions lodged within 14 days of the date of these orders.

(4) The other party may respond to an application for costs of this appeal with written submissions lodged within 21 days of the date of these orders.

(5) Any party applying for costs may lodge written submissions in reply within 28 days of the date of these orders.

(6) In any costs application or costs submissions parties must indicate whether or not they consent to the Appeal Panel deciding the question of costs "on the papers", that is by considering the written submissions, rather than also having an oral 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.

[1] In this decision the number of the strata plan was incorrectly stated as 53482 instead of 52482.

[2] The number of the strata plan was also incorrectly stated in this decision.