(1936) 55 CLR 499
Hunt v The Owners-Strata Plan No 1158/84199 [2024] NSWCATAP 65[2019] NSWCA 231
Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36
Judgment (18 paragraphs)
[1]
Background to the Dispute
It is appropriate to briefly set out the factual background to comprehend the decision of the Tribunal, and before moving to consideration of the grounds of appeal.
In November 2021, the appellant emailed the strata manager of the owners corporation proposing installation of a reverse split cycle air-conditioning system. The appellant's email of 18 November 2018 provided a quotation and details of the air-conditioning system. The email asserted that the alteration of common property was a "minor renovation" under s 110 of the SSM Act.
In December 2021, the appellant applied for a mediation with NSW Fair Trading. On 2 February 2022, NSW Fair Trading wrote to the appellant stating that no mediation would occur as the owners corporation had declined mediation.
In February 2022, after mediation was declined, the appellant installed the air-conditioning system. The condenser unit is situated on an awning above the appellant's commercial lot, and there are associated ducting and electrical works. No prior consent to the works was obtained; nor a common property rights by-law passed under s 142 of the SSM Act. The appellant adopted a view that he could perform the works because the owners corporation had unreasonably refused consent to the works and mediation.
On 30 March 2022, the appellant filed an application for strata mediation with NSW Fair Trading. On 27 April 2022, NSW Fair Trading wrote to the appellant stating that the owners corporation had declined mediation.
On 19 May 2022, the appellant filed proceedings in the Tribunal seeking an order that air-conditioning works be approved under s 126(2) of the SSM Act on the basis that the owners corporation had unreasonably refused the works. The appellant asserted that the works were a "minor renovation" under s 110 of the SSM Act.
On 4 July 2022, the owners corporation obtained a report from Mr Zadro, "remedial and diagnostic engineer" of Remedial Strata Solutions. There was a "visual inspection" of the air-conditioning works. Mr Zadro asserted the works did not comply with the State Environmental Planning Policy legislation.
On 22 November 2022, the appellant's proceedings were listed for a directions hearing before a Senior Member of the Tribunal. The Tribunal made procedural directions regarding the filing and serving of documentary evidence, including any "cross application" filed by the owners corporation.
On 19 December 2022, the owners corporation filed proceedings in the Tribunal. The proceedings were filed by the Solicitors acting on behalf of the owners corporation. The owners corporation relevantly sought orders in the alternative that the appellant remove the air-conditioning works and restore common property; or the owners corporation remove the works and pay the owners corporation $7,534 plus GST for the cost of rectification. The owners corporation also sought an order for access to lot 1; and legal costs.
On 2 March 2023, the appellant's proceedings and the owners corporation's proceedings were listed for hearing together before Member Corley. The parties reached agreement and the Tribunal made the following orders and notations:
1. By consent, on or before 24 March 2023, Mr Choi, owner of Lot 1 SP 56287 will submit a draft by-law to the owners by delivery to the strata manager. The new by-law will address the installation of the reverse cycle air-conditioning system in Lot 1 and will include an obligation on Lot 1 to ensure the colouring of cabling and seals matches the awning, the placement of the condenser unit and the location of cabling (whether this be through or above the awning).
2. By consent, on or before 24 March 2023, Mr Choi will submit an Engineering Report to the strata manager regarding the placement of cabling and the compliance of the system with applicable standards.
3. By consent, the owners will hold a special meeting to consider the new by-law on or before 8 May 2023.
4. By consent, if the new by-law is not passed either party may apply to have the matter re-listed.
The Tribunal notes the parties will work together constructively in attempting to reach agreement on the suitable wording of the new by-law based on the draft by-law submitted by Mr Choi.
In March 2023, the appellant obtained, and forwarded to the owners corporation, an expert report of Mr Chang of KOAUSCAL Pro Engineering Services. That report stated that the air-conditioning works were compliant with relevant standards and the cabling and ducting were appropriate, considering space restraints.
On 8 May 2023, there was an Extraordinary General Meeting (EGM) of the owners corporation to consider the retrospective approval of the air-conditioning works. Two by-laws were proposed to approve the works, and were considered at the meeting. The appellant proposed a by-law that was simple in its terms, stating that the proprietor of Lot 1 would:
"…continue to be responsible for proper maintenance and keeping in a state of good and serviceable repair the air-conditioning in the lot for the general purposes of that lot and any business to be conducted upon the lot."
The appellant's by-law also referred to works on lot 3, despite the fact the appellant was not the owner of lot 3.
The Motion proposing the appellant's by-law was not passed.
The owners corporation proposed a common property rights by-law to retrospectively approve the air-conditioning works. That common property rights by-law was significantly more detailed, comprising of 10 clauses. Clause 1 deals with the "purpose" of the by law, which is to:
1. Establish a framework and mechanism to address the awning issue and the conduit issue; and
2. Permit the owner of the lot a right to retain the past building works, subject to the terms of the by-law.
Clauses 2 and 3 deal with the "awning issue" and "conduit issue". In essence, the lot owner is to obtain a structural engineer (approved by the owners corporation) to prepare a report "to determine whether the penetration of the common property slab directly above the internal part of the lot…does not adversely affect the structural integrity of the building." If the report agrees with the KOAUSCAL report, the lot owner can retain the works. If the report is inconsistent with the KOAUSCAL report, the lot owner has to perform "remediation works" to "remedy the conduit issue." A definition is contained of "remedial works." In respect of the "awning issue", the lot owner is required to perform "remediation works" which are works "necessary to remedy the conduit issue:, including (i) relocating existing air conditioner conduits and cables that alter the external appearance of the lot above the awning and the roof of the lot; (ii) sealing the penetrations to the façade and awning; and (iii) ensuring that any new cables and conduits are not visible from the exterior of the lot.
Clause 7 sets out "obligations and responsibilities" of the lot owner, including providing the owners corporation with a suitable diagram. The lot owner is responsible for the ongoing repair and maintenance of the air-conditioning works.
The owners corporation's proposed by-law was passed at the meeting on 8 May 2023. However, the lot owner did not provide consent (including, relevantly, written consent) and pursuant to s 143(1) of the SSM Act, the owners corporation's proposed by-law could not be registered.
On 10 August 2023, the owners corporation by its Solicitors filed renewal proceedings under cl. 8 of sch. 4 of the NCAT Act on the basis that the orders of the Tribunal dated 2 March 2023 had not been complied with.
The owners corporation sought orders that:
1. The common property rights by-law proposed by the owners corporation on 8 May 2023 be approved under s 149(1)(b) of the SSM Act (i.e. that the appellant had unreasonably refused to consent to the by-law).
2. In the alternative, orders under s 132 of the SSM Act that the appellant remove the works and restore common property; or that the owners corporation be given access to the lot to perform such works and that the appellant pay the owners corporation $7,534 plus GST for the cost of removal and restoration. The owners corporation also sought orders to access the lot to perform such works; and legal costs.
On 5 September 2023, the appellant proposed a revised common property rights by-law to the owners corporation, which, according to the appellant's submissions excluded "the false conduit issue and the awning issue" contained in the owners corporation's proposed common property rights by-law passed at the EGM on 8 May 2023. However, that proposed common property rights by-law has never been put to a meeting of the owners corporation.
On 12 September 2023, at a directions hearing the Tribunal made orders for the filing and serving of documentary evidence in the renewal proceedings and set the matter down for hearing. The Tribunal also ordered that both parties were granted leave to be legally represented in the proceedings.
In November 2023, the owners corporation obtained an expert report from Mr Adnan, engineer. That report was based on a visual inspection and site photographs taken by Mr Adnan. Mr Adnan asserted that the "conduit installation" did not comply with relevant Australian Standards. However, Mr Adnan agreed with the KOAUSCAL report of the appellant that the cabling of the air conditioning unit complied with relevant Australian Standards. Mr Adnan asserted that the air-conditioning conduits could be relocated to avoid them being exposed on the underside of the awning at the front of the lot; and that the works identified in the common property rights by-law proposed by the owners corporation at the meeting on 8 May 2023 were reasonable.
On 30 November 2023, the owners corporation held a further EGM. The Minutes of the meeting (which were not in the appeal bundles of either party, but were handed up by the legal representative of the owners corporation at the appeal hearing) state that there were 4 Motions. One of those Motions was to "ratify" the appointment of Thomas Martin Lawyers to act for and advise the owners corporation in the air-conditioning works dispute. Two other Motions were to make a common property rights proposed by the owners corporation. The Minutes of the Meeting relevantly state:
3. Special By-law 4: Air Conditioning Works (Lot 1) (Submitted by the Strata Committee)
Motion
The Owners-Strata Plan No 52482 SPECIALLY RESOLVE to ratify the decisions of the owners corporation pursuant to sections 108, 141 and 143 of the Strata Schemes Management 2015 to:
1. Make a common property rights by-law, Special By-Law No [x]-Air Conditioner Works (Lot 1), a copy of which is attached to the agenda of this meeting (as "A"); and
2. Authorise the Remediation Works (a term defined in the subject by-law) with the owner of lot 1 responsible for the maintenance and repair of those Remediation Works,
And if passed resolve to register the by-law with NSW Land Registry Services.
Motion: CARRIED
4. Special By-law 4: Air Conditioner Works (Lot 1) (Submitted by the Strata Committee)
Motion
The Owners-Strata Plan No 52482 SPECIALLY RESOLVE pursuant to sections 108, 141 and 143 of the Strata Schemes Management Act 2015 to:
1. Make a common property rights by-law, Special By-law No [x]-Air Conditioner Works (Lot 1), a copy of which is attached to the agenda of this meeting (as "B"); and authorise the Required Works ( a term defined in the subject by-law) with the owner of lot 1 responsible for the maintenance and repair of those Required Works,
And if passed resolve to register the by-law with NSW Land Registry Services.
Motion: CARRIED
Unfortunately, the documents of the respondent at the appeal hearing do not contain a copy of the agenda of the meeting on 30 November 2023. Accordingly, we do not have in the appeal documents a clearly explicable copy of the by-laws that were passed at the meeting on 30 November 2023. It is also unclear to us how the owners corporation could pass two common property rights by-laws over exactly the same issue. We understand the argument of the owners corporation is that it passed the two Motions to give the appellant the opportunity to consent to one of those. However, unless the common property rights by-laws involved separate rights and obligations regarding the common property, only one of those by-laws could be registered.
In any event, a critical issue is what was the common property rights by-law that the Tribunal ordered be registered in the decision of 9 February 2024. We were informed by the respondent at the appeal hearing that common property rights by-law is the one that is set out at pp 215-220 of the respondent's appeal document bundle.
That common property rights by-law states provides for the following:
1. The purpose of the by-law is to (a) establish a framework and mechanism to address the "awning issue;" and (b) permit the owner of the lot to retain the "past building works," subject to the terms of the by-law.
2. The lot owner is responsible for the maintenance and repair of the "past building works."
3. The lot owner must ensure the colouring of cabling and conduits, that form part of the "past building works" matches the awning and the penetration of the cabling are properly sealed and waterproofed.
4. The lot owner warrants that the past building works were carried out in a competent manner; by licensed contractors; and in accordance with the National Construction Code and Building Code of Australia.
5. The lot owner will ensure any holes and penetrations made during the past building works and the required works are adequately sealed and waterproofed.
6. If the lot owner elects to remove the past building works, the common property must be restored.
7. The lot owner must make good any damage to common property or any other lot caused by or arising out of the past building works or the required works.
8. If the lot owner breaches this by-law and fails to rectify the breach within 14 days of service of a written notice from the owners corporation requiring rectification of the breach, the owners corporation may rectify the breach and enter the lot to perform works to rectify the breach.
9. To "resolve the awning issue" the lot owner must "carry out the required works." The "required works" are defined as "works necessary to remedy the awning issue" including (a) removing the cabling and sealing the penetrated area; and (b) relocating the cabling, conduits and insulated tubes by ensuring the path of travel is from the condenser unit across the top of the awning then through the top of the awning before entering the lot, as depicted in photograph "B" attached to the by-law.
10. "Past building works" is defined as "the renovation works carried out to the lot and common property contiguous to the lot prior to the registration of the by-law, comprising of the installation of a reverse cycle split air conditioner system, including condenser, any pipes, wires, ducts and conduits and plumbing and electrical works as reasonably required."
The appellant filed the appeal on 7 March 2024. The appeal was filed within the applicable time period under r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules).
[2]
Grounds of Appeal
The appellant identified 6 grounds of appeal in the Notice of Appeal.
The grounds of appeal are set out in a manner that makes submissions about the purported facts of the dispute, rather than identifying an error on a question of law. We summarise the grounds as follows:
Ground 1. The appellant asserts the Tribunal "erred in applying s 149(1)(b) of the SSM Act in finding that the appellant had unreasonably refused to consent to the common property rights by-law because:
1. The expert evidence was that there was no penetration of the common property slab; the conduit cable does not travel through internal ceiling; and there is no damage to the awning.
2. The owners corporation's Solicitor made an offer on 10 November 2023 that was inconsistent with the "awning issue required works".
3. The "proposed special by-law No 4-Air Conditioner Works (l1) is "contradictory" to the explanatory note in the by-law, because the explanatory note refers to the owners corporation's by-law being an amendment of the by-law proposed by the applicant to include provisions regarding responsibility of the lot owner for ongoing repairs and maintenance of the works.
4. The Tribunal "did not have regard" to "unauthorised" air-conditioning works and alteration to common property of lot 2 (bakery shop) and lot 3 (nail salon), with each lot owner having performed air-conditioning works without a common property rights by-law authorising the works.
Ground 2-The Tribunal "erred" in determining that a strata committee meeting on 21 November 2022 was "lawful" because there "had been no elected strata committee members of the owners corporation" at the previous annual general meeting. Consequently the Tribunal renewal proceedings and the owners corporation being represented by lawyers was "unlawful." Further, the legal services obtained by the owners corporation did not comply with s 103 of the SSM Act.
Ground 3-The Tribunal "erred in having regard" to Macey's Group Pty Ltd v The Owners-Strata Plan No 33591 [2021] NSWCATAP 7 at [54] because it did not take into account the unauthorised air-conditioning work alteration of common property of the owners of lots 2 and 3 as a reasonable basis for the appellant refusing to consent to the owners corporation's proposed common property rights by-law.
Ground 4- The Tribunal "erred" in applying s 142 of the SSM Act because (a) the air-conditioner did not require a common property rights by-law; (b) the unauthorised air-conditioner works of lots 2 and 3 set a precedent.
Ground 5-The Tribunal "erred" in not having regard to a comment made by Member Corley at the hearing on 2 March 2023; the installation of the air-conditioner is a "minor renovation" under s 110 of the SSM Act; and not taking into account the fact that air-conditioning works were done in respect of lots 2 and 3 without a common property rights by-law.
Ground 6-The appellant "felt threatened" when the Tribunal Member referred made a comment at the hearing that if he did not consent to a common property rights by-law the air-conditioning works may have to be removed.
The Notice of Appeal did not indicate the appellant was seeking leave to appeal under cl. 12 of sch. 4 of the NCAT Act.
The appellant filed a bundle of documents with the Notice of Appeal; a further bundle of documents and submissions on 4 April 2023; and a bundle of documents and submissions in reply on 3 May 2024.
[3]
Reply to Appeal
The respondent filed a reply to appeal on 26 March 2024; and documents and submissions in the appeal on 6 May 2024.
[4]
Fresh Evidence
The appellant's documents contained fresh evidence that was not before the Tribunal at the hearing on 9 February 2024. The fresh evidence was in respect of negotiations after the hearing, including an offer made by the appellant on 18 March 2024.
Fresh evidence cannot be relied upon without leave of the Appeal Panel (The Owners-Strata Plan No 53865 v JPG Investments Pty Ltd [2024] NSWCATAP 12 at [167]-[174]. Leave is not granted to rely on this evidence, as the settlement negotiations and events after the hearing is not significant new evidence; nor are those matters relevant to the disposition of the appeal.
[5]
Scope and Nature of Appeals
An appeal to the Tribunal's Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run its case again, nor is it sufficient for an appellant to disagree with the outcome and to contend there should have been a different outcome: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]; Brahmbhatt v Osorio [2023] NSWCATAP 188 at [27]-[28].
To succeed in an appeal, an appellant must demonstrate either an error by the Tribunal below on a question of law, which may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2).
An appellant to an internal appeal brought under s 80(2)(b) of the NCAT Act must identify with precision a question of law said to be raised by the appeal: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]. Whether a question is one of law must be approached as a matter of substance: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at 62, [94], [203]; Kudrynski v Orange City Council [2024] NSWCA 33 at [50]. Each question must be a pure question of law (Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 ("Orr v Cobar") at [44], [49]; and Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71]). In Orr v Cobar at [109] it was said by Bathurst CJ and Bell P (as the Chief Justice then was) with Garling, Johnson and Lonergan JJ agreeing:
"Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law.' They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts. The construction accords with the cases we have referred to at [48] and [70] above."
Examples of pure questions of law include:
1. Denial of procedural fairness (Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at 13); FVA v Commissioner for Police, NSW Police Force [2024] NSWCATAP 127 at [83]-[84]).
2. A constructive failure to exercise jurisdiction, which includes the failure to consider and address a material issue raised by a party in the proceedings that is within the jurisdiction of the Tribunal to determine (Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]-[12] and [413]). This category of error also includes a failure by the Tribunal to engage with a clearly articulated argument put to it.
3. Acting on the application of the wrong legal principle which materially affected the outcome (Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [38]-[53]).
4. No evidence to support a factual finding (Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 23 at [91])
The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily it is appropriate to grant leave where there is an issue of principle, a question of public importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597 at [28]. As explained in Collins v Urban at [84], it is not sufficient merely to show that the Tribunal below was arguably wrong or that there was a bona fide challenge to an issue of fact.
Further, the circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division of this Tribunal under s 80(2)(b) of the NCAT Act are limited to those set out in cl 12 (1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12 (1) of Sch 4 may have been suffered where:
"… there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
[6]
Consideration
The appellant provided a large number of documents and submissions in chief and in reply. It was a challenging task to ascertain what evidence and arguments were put before the Tribunal at the hearing on 9 February 2024; and what was fresh evidence and argument that was not raised at the hearing. The appellant failed to provide a sound recording of the hearing on 9 February 2024, nor a transcript of that hearing.
The Appeal Panel is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point, subject to dealing with the substance of the grounds of appeal in an appropriately informal but procedurally fair way: Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21]; Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [42]; Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 at [34]-[42]; Halil v NSW Land and Housing Corporation (No 2) [2023] NSWSC 1646 at [62]-[64].
[7]
General Principles
Before considering the grounds of appeal, it is pertinent to set out the applicable legal principles for the alteration of common property in a strata scheme building. However, we note that the works involved are clearly not cosmetic works under s 109 of the SSM Act. Accordingly, that provision is not discussed.
Section 108 of the SSM Act states:
108 Changes to common property
(1) Procedure for authorising changes to common property An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property.
(2) Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed.
Note -
If the special resolution is a sustainability infrastructure resolution fewer votes may be needed to pass it. See section 5(1)(b).
(3) Ongoing maintenance A special resolution under this section that authorises action to be taken in relation to the common property by an owner of a lot may specify whether the ongoing maintenance of the common property once the action has been taken is the responsibility of the owners corporation or the owner.
(4) If a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has the responsibility for the ongoing maintenance.
(5) A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless -
(a) the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and
(b) the owners corporation makes the by-law.
(6) The by-law -
(a) may require, for the maintenance of the common property, the payment of money by the owner at specified times or as determined by the owners corporation, and
(b) must not be amended or repealed unless the owners corporation has obtained the written consent of the owner concerned.
(7) Sections 143 (2), 144 (2) and (3) and 145 apply to a by-law made for the purposes of this section in the same way as they apply to a common property rights by-law.
Note -
A new by-law or other changes to the by-laws for a strata scheme must be approved by a special resolution of the owners corporation (see section 141).
Section 111 of the SSM Act states:
111 Work by owners of lots affecting common property
An owner of a lot in a strata scheme must not carry out work on the common property unless the owner is authorised to do so -
(a) under this Part, or
(b) under a by-law made under this Part or a common property rights by-law, or
(c) by an approval of the owners corporation given by special resolution or in any other manner authorised by the by-laws.
If a lot owner adds to the common property; or alters the common property; or erects a new structure on common property for the purpose of improving the common property (such as renovating the lot) then prior permission of the owners corporation must be obtained by the passing of a special resolution at a meeting of the owners corporation, and will also involve the passing and registration of a common property rights by-law if the lot owner is requesting exclusive use, enjoyment, or special privileges over common property-see s 142 of the SSM Act) .
The exceptions to this are cosmetic works under s 109 of the SSM Act (which require the prior approval of the owners corporation, but not a resolution of a meeting of the owners corporation) and minor renovations under s 110 of the SSM Act (which require approval by a resolution passed at a general meeting of the owners corporation, but not a special resolution).
As discussed previously, if any exclusive use and enjoyment or any special privileges for the lot owner over common property are involved, a common property rights by-law is required, which must be passed at by special resolution at a meeting of the owners corporation and registered (ss 141-145 of the SSM Act).
If the owners corporation refuses to consent to proposed work by the lot owner (and the works do not involve the necessity for a common property rights by-law) then s 126 of the SSM Act provides that a lot owner may seek an order from the Tribunal if the owners corporation has unreasonably refused consent.
Sections 142 and 143 of the SSM Act state:
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.
Section 144 of the SSM Act relevantly provides that a common property rights by-law must provide that either the owners corporation is responsible for the ongoing maintenance and repair of the altered common property; or the lot owner is responsible. Under s 145(1) of the SSM Act, a common property rights by law binds the lot owner specified in the by-law while it remains in force.
Section 149 of the SSM Act states as follows:
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.
The principles regarding whether there has been unreasonable refusal of a common property rights by-law usually arise when an application is made by a lot owner under s 149(1)(a) of the SSM Act in circumstances where the proposed common property rights by-law of the lot owner to alter common property has failed to pass at a general meeting of the owners corporation, rather in circumstances where a lot owner has refused to consent to a common property rights by-law under s 149(1)(b) of the SSM Act. Macey's Group Pty Ltd v The Owners Strata Plan No 33591 [2021] NSWCATAP 7 (Macey's Group) deals with s 149(1)(b) of the SSM Act rather than s 149(1)(a) (see, in particular, [54]-[55] and [84]).
Authorities referring to the principles under s 149(1)(a), and in particular what matters require consideration as to whether there has been unreasonable refusal, have been considered in Capcelea v The Owners-Strata Plan No 48887 [2019] NSWCATCD 27; Bruce v Knight [2021] NSWCATAP 224; The Owners-Strata Plan No 568 v Levitin; Levitin v The Owners Strata Plan No 568 [2021] NSWCATCD 65; Kaye v The Owners-Strata Plan No 4350 [2022] NSWSC 1386 (Kaye); Hunt v The Owners-Strata Plan No 1158/84199 [2024] NSWCATAP 65; and Lenux v The Owners-Strata Plan No 88786 [2023] NSWCATCD 186 (Lenux). In Lenux, Blake SC SM (as he then was) summarised the relevant principles at [54]-55]).
When those authorities are considered in the context of an application under s 149(1)(b) of the SSM Act, the applicable principles are:
1. The test for whether the failure to consent to the proposed common property rights by-law is "unreasonable" is objective.
2. The applicant (i.e. the owners corporation) bears the onus of proving the refusal was unreasonable.
3. The assessment involves whether there was an objectively rational basis for the refusal to consent to the proposed common property rights by-law in all the relevant circumstances existing at the time of the meeting, but not confined to the material before the general meeting.
4. The Tribunal must have regard to the matters in s 149 (2) of the SSM Act; being (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. This involves consideration of competing interests in determining whether the relevant refusal is unreasonable. The fundamental assessment, upon which the challenging owners corporation bears the onus of proof, is whether or not, taking into account those interests, rights and expectations, the decision to refuse to consent to the common property rights by-law was unreasonable.
5. Subjective views not based upon the matters in s 149(2) of the SSM Act, such as distrust; personal animosity; or opposition to another lot owner obtaining a benefit; are of limited relevance to the objective consideration of whether the refusal was reasonable in all the circumstances. Rather, if they are relevant, they may point towards the refusal being objectively unreasonable having regard to the matters in s 149(2).
It is important not to divert from the central issue, which is whether the refusal to consent was objectively unreasonable. In Macey's Group the Appeal Panel stated at [54]:
"In making a determination under subs 149(1)(b), s 149(2) requires the Tribunal to have regard to the interests of all lot owners and to the rights and reasonable expectations of the owner deriving a benefit under a common property rights by-law. This involves balancing the competing interests in determining whether the relevant refusal is unreasonable: Reen v Owners Corporation SP 300 [2008] NSWSC 1105 at [57]- [58] (which dealt with the equivalent s158 found in the 1996 Management Act); Ainsworth v Albrecht [2016] HCA 40 at [49]."
In Kaye, Basten AJ stated in respect of the matters under s 149(2) at [48] and [52]:
Further, the interests of the proponents and the interests of other lot owners were likely to be in conflict. It was not for the Appeal Panel to seek to "balance" those interests by apportioning weight between them, so as to conclude that a refusal would be unreasonable if the balance favoured the proponents. The function of the Appeal Panel was to determine whether the refusal was "unreasonable." In making that assessment, it was entitled to treat as a valid reason for voting against the proposal a belief or opinion, whether or not it was supported by "evidence." The Management Act does not require that the owners corporation accept any proposal which was objectively reasonable. Nor should the Tribunal, in applying s 149(1)(a) of the Act, decide that a refusal was unreasonable merely because it considered the proposal to be reasonable. The plaintiffs' contentions came close to such an assertion.
…
The statement in [91] was anodyne: it merely reflected the terms of s 149(2). However, as appears at [92], the Appeal Panel treated s 149(2) as requiring that it undertake a balancing exercise in determining whether the refusal of the owners corporation was "unreasonable". As has been noted above, in its terms, s 149(2) does not require a balancing exercise, nor does it address the criterion of unreasonable refusal: it is concerned with the discretionary exercise of the power of the Tribunal to make an order prescribing the by-law, assuming that the criterion of unreasonable refusal has been established. There is no requirement that the owners corporation have regard to the matters in s 149(2) and there is certainly no foothold in the statute for an implication that failure to have regard to those matters would render a refusal unreasonable. [19]
In essence, the task of the Tribunal was to determine whether Mr Choi had unreasonably refused to consent to the common property rights by-law passed by the owners corporation at the general meeting of 30 November 2023, having regard to the matters in s 149(2) of the SSM Act and the legal principles previously referred to.
We now move to consideration of the grounds of appeal raised by the appellant.
We note two aspects of the appeal. Firstly, no ground of appeal was raised that the reasons of the Tribunal were inadequate (New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [66]- [77]).
Secondly, no cross appeal or argument was raised by the respondent that the form of the orders made by the Tribunal Senior Member on 9 February 2024 were not capable of registration as a common property rights by-law due to any deficiency in their form.
Accordingly, those issues are not addressed.
[8]
Ground 1-Section 149(1)(b) of the SSM Act
The appellant's oral and written submissions extrapolated upon the grounds of appeal identified above.
The appellant focused upon factual matters, including his interpretation of the expert evidence regarding penetration into common property; the explanatory note; and that other lot owners had installed air-conditioning works without those lot owners having consent of the owners corporation or a common property rights by-law passed.
The respondent submitted that the submissions regarding the content of the proposed by-law are misconceived because the "explanatory note" was in respect of the common property rights by-law passed at the meeting on 30 November 2023 that was the 'alternative' by-law proposed for approval by the Tribunal (in circumstances where, as discussed above, two proposed common property by-laws were being put forward by the owners corporation). This was not the common property rights by-law that the Tribunal ordered be registered (which was 'Annexure A' to the Tribunal submissions of the owners corporation and which did not have an explanatory note.
Further, the respondent submitted that the applicant provided no evidence that other lot owners air-conditioning works had not been consented to by the owners corporation in accordance with the requirements of the SSM Act.
We accept that the reference by the appellant to the "explanatory note" is to the by-law that was not the by-law that the Tribunal ordered be registered, and accordingly it is irrelevant to determination of whether an error on a question of law is established.
We give no weight to the respondent's submission that the appellant had failed to establish that the air-conditioning works to other lots had not been approved by the owners corporation in accordance with its obligations under the SSM Act. It was the respondent who had filed the renewal application in the Tribunal; and it was the respondent who was seeking an order under s 149(1)(b) of the SSM Act that Mr Choi had unreasonably refused to consent to the making of the common property rights by-law.
In those circumstances, it was open to the respondent to adduce evidence of whether or not air-conditioning works performed by other lot owners were approved in accordance with the SSM Act; or not. As Hodgson JA stated in Ho v Powell [2001] NSWCA 168 at [14]-[15]:
14 There is a long-standing controversy whether the civil standard of proof requires a numerical probability in excess of 50 per cent (see Davies v. Taylor [1974] AC 207 at 219), or belief amounting to reasonable satisfaction (see Briginshaw v. Briginshaw [1990] HCA 20; (1938) 169 CLR 638 at 642-3). My own opinion is that the resolution of the controversy involves recognition that, in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision. I discussed this in some detail in an article published at (1995) 69 ALJ 731.
15 In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so: cf. 69 ALJ at 732-3, 736, 740. As stated by Lord Mansfield in Blatch v. Archer [1774] EngR 2; (1774) 1 Cowp. 63 at 65 [1774] EngR 2; (98 ER 969 at 970):
All evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.
However, irrespective of the owners corporation not adducing evidence that air conditioning works by other lot owners had been approved, the ground of appeal raised by the appellant does not identify a question of law.
We are cognizant of the principles in Cominos v Di Rico [2016] NSWCATAP 5 at [13] that it may be difficult for a self-represented party to clearly articulate grounds of appeal and that the Appeal Panel should focus upon whether the substance of the ground identified raises an error on a question of law, subject to procedural fairness in the conduct of the appeal to the respondent. However, taking that into account, Ground 1 of the appeal does not identify any error on a question of law.
If the most expansive view of Ground 1 was adopted, the substance of what is being raised would involve the exercise of discretion by the Tribunal. The appellant would need to satisfy the Appeal Panel that the Tribunal miscarried in the exercise of its discretion under the well-established principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505. The submissions and documents of the appellant do not establish any House v The King error.
The appellant's submissions regarding the content of the various expert reports do not raise a question of law. At their highest, they would raise an argument in respect of leave to appeal in accordance with the principles set out in Collins v Urban.
Ground 1 of the appeal is dismissed.
[9]
Ground 2-The Strata Committee Meeting on 22 November 2022 Was Unlawful
This ground is based on the assertion by the appellant that there had never been a duly elected strata committee after the general meeting on 9 September 2021, which (in the opinion of the appellant) means that any decisions of the owners corporation (including the appointment of legal representatives) and the taking of proceedings in the Tribunal are without legal foundation.
The respondent submits that:
1. The appellant has never identified why the meeting of 22 November 2022 did not comply with the provisions of the SSM Act and was "unlawful".
2. Even if legal representatives were not duly appointed, s 103(4) of the SSM Act provides that the failure of an owners corporation to obtain approval under s 103 does not affect the validity of any proceedings or other legal action taken by the owners corporation.
3. The issues for determination in the renewal proceedings brought by the owners corporation involved unauthorised works and whether a by-law had been unreasonably refused by Mr Choi; not the validity of a general meeting on 22 November 2023.
We are not satisfied a question of law arises. The proceedings the subject of this appeal were renewal proceedings under cl. 8 of sch. 4 of the NCAT Act arising from the alleged non-compliance with the consent orders of 2 March 2023. No appeal was filed from the consent orders of 2 March 2023 alleging that the Tribunal had no jurisdiction to make those orders as the proceedings had not been properly commenced by the owners corporation. The appellant did not seek any order in the renewal proceedings under s 24 of the SSM Act to declare invalid any resolution passed at a general meeting of the owners corporation (Harris v The Owners Strata Plan No 34056 [2022] NSWCATAP 111 at [36]-[47]); nor any order that any resolution be declared a nullity under s 25 of the SSM Act on the basis the appellant was improperly denied the opportunity to vote or not given due notice of the item of business.
In any event, we accept the submission of the respondent that the appellant has failed to identify why the meeting on 22 November 2022 was "unlawful".
In respect of the assertion that the respondent did not properly authorise the engagement of legal representatives under s 103 of the SSM Act, the EGM on 30 November 2023 passed a Motion ratifying the appointment of legal representatives in respect of the dispute, and delegating the powers or functions of strata committee and strata managing agent "regarding the Dispute, including prosecuting or defending any claim and entering into settlement discussions". It is unnecessary for us to explore whether the owners corporation had the power to make such a delegation, as that has not been raised as a ground of appeal.
The engagement of legal representation, and the commencement of legal proceedings, by an owners corporation without a prior resolution being passed at a general meeting of the owners corporation does not automatically make the said legal proceedings invalid, as a resolution can be passed giving retrospective approval (2 Elizabeth Bay Road Pty Ltd v The Owners-Strata Plan No 73943 [2014] NSWCA 409 at [7]; [46]-[47]; [51]-[52]; [88]; [105]; [108]; The Owners-Strata Plan No 70798 v Bakkante Constructions Pty Ltd [2014] NSWCA 410 at [14] and [82]; s 103(4) of the SSM Act).
No reference was made in the appellant's submissions that he had ever raised with the Tribunal in the proceedings under appeal that no resolution had been passed authorising Tribunal proceedings, other than on the basis that no strata committee had been duly elected on 22 November 2022. That is not sufficient give rise to a question of law, particularly in circumstances were the appellant had not provided a sound recording or transcript of the hearing on 9 February 2024 and we cannot independently ascertain what, if any, submissions or application was made by the appellant to the Tribunal on 9 February 2024 as to the jurisdiction of the Tribunal to hear the renewal proceedings. A new point can only be raised on appeal that was not raised at the hearing below in very limited circumstances (Independent Liquor and Gaming Authority v Auld [2018] NSWCATAP 184 at [252]-[278]). We are not satisfied those circumstances are enlivened in this appeal.
Ground 2 of the appeal is dismissed.
[10]
Ground 3-The Tribunal's Reference to the Appeal Panel Decision in Macey's Group Pty Ltd v The Owners Strata Plan No 33591 [2021] NSWCATAP 7
As discussed previously, the Appeal Panel decision in Macey's Group was a relevant authority regarding whether a lot owner had unreasonably refused to consent to the passing of a common property rights by-law. No question of law is established by reason of the Tribunal referring to that legal authority.
Ground 3 of the appeal is dismissed.
[11]
Ground 4-Applying ss 142 and 149(1)(b) of the SSM Act
The appellant submits that the Tribunal erred in applying ss 142 and 149(1)(b) of the SSM Act. The respondent submits that there was no error and the appellant has not identified an error on a question of law in any event. We will consider this ground of appeal on the basis that it is an argument that the wrong legal principle or legal construction of the statutory provisions occurred irrespective of the facts. Otherwise, leave to appeal is required, and we have dealt with leave to appeal separately in this decision.
The submissions of the appellant refer in substance to two issues which in effect challenge to the underlying facts and do not raise a question of law. Firstly, the appellant does not agree that a common property rights by-law was necessary to authorise the air-conditioning works performed. Secondly, the appellant again refers to other lot owners having installed air-conditioning works without a common property rights by-law.
In respect of the first issue, the nature and extent of the works that alter the common property clearly go beyond minor renovations; and require a common property rights by-law. The works involve structural changes; and change the external appearance of the lot by reason of the position of the air-conditioning unit on the awning. Accordingly, by reason of s 110(7)(b) and (c) of the SSM Act, they are not "minor renovations".
In respect of the second issue, the mere asserted fact that other lot owners have installed works without a common property rights by-law does not establish error on a question of law in respect of whether the appellant's refusal to consent to the proposed common property rights by-law was unreasonable under s 149(1)(b) of the SSM Act. The appellant is obliged to comply with the SSM Act irrespective of whether or not other lot owners have done so in the past.
Ground 4 of the appeal is dismissed.
[12]
Ground 5-The Comment Made by Member Corley at the Hearing on 2 March 2023
The appellant submits that Member Corley made a comment at the hearing on 2 March 2023 to the effect that "it would just be a new by-law added to the existing by-laws, so an amendment to the existing by-laws".
The appellant interprets this to mean that no common property rights by-law was necessary to authorise the works; and repeats his submissions that the works were minor renovations under s 110 of the SSM Act.
The appellant provided a transcript extract of the comment referred to by Member Corley in his appeal documents, despite not providing a transcript or sound recording of the hearing before Bluth SM on 9 February 2024.
The respondent submits that the comment by Member Corley were taken out of context, and in any event do not constitute an error on a question of law in the decision of the Tribunal dated 9 February 2024.
We accept the respondent's submission on this ground of appeal. No appeal was filed from the consent orders made by Member Corley and the decision under appeal is that of 9 February 2024. We are also satisfied that the appellant's air-conditioning works did require a common property rights by-law (as the Tribunal found in its decision of 9 February 2024). No error on a question of law is identified or established.
Ground 5 of the appeal is dismissed.
[13]
Ground 6-Being 'Threatened' By the Senior Member at the Hearing that if the Appellant Did Not Agree With the By-Law He Would Have No Air-Conditioner
The appellant submits that the Tribunal made a comment at the hearing that if he did not agree with the by-law proposed by the owners corporation he would have "no air-conditioner."
If this raises a question of law it might be that the Tribunal failed to afford procedural fairness to the appellant.
However, as previously discussed, there was no sound recording or transcript of the hearing on 9 February 2024, so we have no independent verification of what was said by the Tribunal Member, and if so, in what context it was said.
In any event, the substance of what is raised by the appellant in ground 6 of the appeal does not demonstrate a denial of procedural fairness due to excessive and unreasonable judicial intervention (The Owners-Strata Plan No 79633 v Graorovska [2022] NSWCATAP 152 at [96]-[105]).
Ground 6 of the appeal is dismissed.
[14]
Leave to Appeal
The appellant did not seek leave to appeal in the notice of appeal; nor did the appellant seek to amend the appeal to raise an application for leave to appeal.
However, for the sake of completeness and noting that the appellant is a self-represented litigant, it is appropriate for us to indicate that, if leave to appeal had been sought, it would be refused. None of the matters raised in the appeal documents or submissions is sufficient to establish that leave to appeal should be granted, applying the principles in Collins v Urban.
[15]
The Issue of Costs
In its appeal submissions (at paras [59]-[90]) the respondent has made costs submissions that there are sufficient "special circumstances" to warrant an award of costs by reason of the operation of ss 60(1)-(3) of the NCAT Act. The respondent seeks indemnity costs from 17 April 2024 on the basis of its assertion the appellant unreasonably refused to withdraw the proceedings despite a letter from the respondent's Solicitor pointing out the purported weakness of the appeal.
The appellant replied to those costs submissions in his reply submissions contained in a document headed "summary of the case for the appeal hearing."
In the circumstances, we do not regard it as appropriate to express a preliminary view on the issue of costs; or to make any order on the issue of costs and give the parties an opportunity to apply to vary the order. Rather, after both parties have had the opportunity to consider this decision and reasons, we regard it appropriate to give both parties an opportunity to make further submissions on the issue of costs, if the respondent intends to pursue the costs application. If that occurs, we will separately consider and determine the costs of the appeal.
[16]
Variation of the Date of Compliance With the Tribunal Orders of 9 February 2024
By reason of the appeal, and the stay of the orders previously granted by the Appeal Panel on 18 March 2024, the date of compliance with orders 2 and 3 of the Tribunal has now passed.
In those circumstances, it is appropriate to exercise our powers under s 81(1)(b) of the NCAT Act to vary the orders so that time for compliance with orders 3 and 4 commences from the date of the appeal decision.
The owners corporation will also have to register the common property rights by-law in accordance with the relevant provisions of the SSM Act. No issue was raised by the owners corporation in the appeal that they could not do so by reason of any inadequacy of the orders made by the Tribunal on 9 February 2024.
[17]
ORDERS
1. The appeal is dismissed.
2. The stay orders of the Appeal Panel dated 18 March 2024 are lifted immediately.
3. Orders 3 and 4 of the Tribunal dated 9 February 2024 are varied so that the phrase "from the date of these orders" reads "from the date of the Appeal Panel decision".
4. The respondent is to lodge with the Registry and serve on the appellant, by person or by post and additionally by email, any additional costs submissions by 7 days from the date of this decision.
5. The appellant is to lodge with the Registry and serve on the respondent, by person or by post and additionally by email, any costs submissions by 14 days from the date of this decision.
6. The respondent is to lodge with the Registry and serve on the appellant, by person or by post and additionally by email, any costs submissions in reply by 21 days from the date of this decision.
7. The costs submissions of the parties are to include whether or not they consent to the issue of costs being determined on the papers and without an oral hearing on the issue of costs, and if not, why not.
8. Subject to consideration of the costs submissions of the parties the Appeal Panel may determine it appropriate to dispense with an oral hearing on the issue of costs under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
9. Either party may apply in writing to the Appeal Panel and the other party to vary or amend the timetable for costs submissions.
10. If no application for costs is made in accordance with these orders, there is no order as to costs with the intention of each party bearing its own costs in accordance with s 60(1) of the Civil and Administrative Tribunal Act 2013 (NSW).
[18]
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: 19 November 2024
9
Hunt v The Owners-Strata Plan No 1158/84199 [2024] NSWCATAP 65;
Independent Liquor and Gaming Authority v Auld [2018] NSWCATAP 184
Kaye v The Owners-Strata Plan No 4350 [2022] NSWSC 1386
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 23
Kudrynski v Orange City Council [2024] NSWCA 33
Lenux v The Owners-Strata Plan No 88786 [2023] NSWCATCD 186
Macey's Group Pty Ltd v The Owners-Strata Plan No 33591 [2021] NSWCATAP 7
Mendonca v Legal Services Commissioner [2020] NSWCA 84
Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235
(New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231
Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220
Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69
Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39
Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597
The Owners-Strata Plan No 53865 v JPG Investments Pty Ltd [2024] NSWCATAP 12
The Owners-Strata Plan No 568 v Levitin; Levitin v The Owners Strata Plan No 568 [2021] NSWCATCD 65
The Owners-Strata Plan No 70798 v Bakkante Constructions Pty Ltd [2014] NSWCA 410
The Owners-Strata Plan No 79633 v Graorovska [2022] NSWCATAP 152
Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40
Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123
Texts Cited: None cited
Category: Principal judgment
Parties: Jin Beom Choi (Appellant)
The Owners Strata Plan No 52482 (Respondent)
Representation: Appellant (self-represented)
Decision of the Tribunal Under Appeal
The decision of 9 February 2024 contains written reasons. Those reasons are economical.
The reasons relevantly state as follows:
1. The proceedings involved an application by the owners corporation for the appellant "to either consent to a special rights (sic) by-law" under s 149(1) of the SSM Act "or to remove the works on common property" performed by the appellant.
2. The appellant had provided a common property rights by-law for the works to be retrospectively approved. That by-law was "inadequate in many respects" because it "does not deal with care (sic) and maintaining the works in a proper manner;" "does not deal with obtaining approvals from the local authority;" and "indemnities" (sic) amongst "other omissions."
3. The owners corporation submitted "2 forms of the by-laws (sic) in the alternative" to the appellant "to be considered". Each "deals with adequately and properly in my view the issues to be traversed by such a by-law."
4. The appellant did not agree with either version of the common property rights by-law proposed by the owners corporation. The reasons the appellant did not consent to the two common property rights by-laws proposed by the owners corporation were "the claim by the (owners corporation) for costs" and "alleged false accusations."
5. The Tribunal referred to s 149(1)(b) of the SSM Act and that the Tribunal was "to have regard to the interests of all lot owners and to the rights and reasonable expectations of the owner deriving a benefit under a common property rights by law". The Tribunal referred to Macey's Group Pty Ltd v The Owners Strata Plan No 33591 [2021] NSWCATAP 7 at [54] as containing applicable legal principles and that the Tribunal had considered those principles.
6. The Tribunal found it was "not reasonable" the appellant refused to consent to the by-law proposed by the owners corporation, and that "the dispute has been ongoing for many years and should be resolved."