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[2025] NSWCA 203
respondent. The summons filed on 22 May 2025 seeking leave to appeal from Kirk J’s orders of 20 February 2025 was dismissed. The applicant was ordered to pay the respondent’s costs: [53].
The Court of Appeal refused Colman permission to appeal. It held that his complaints about evidence, the ducting works, and the characterisation of the waterproofing claim did not show that Kirk J had failed to decide a central, clearly articulated issue. The decision concerns the threshold for alleging constructive failure to exercise jurisdiction and obtaining leave to appeal. It does not itself decide whether the owners corporation breached s 106 or whether damages were available on the merits.
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2,297 words · generated 06/10/2026
Gary Colman owned Lot 147 in the Palladium strata scheme in Pyrmont. His apartment was on level 10, and his lot title included western and eastern terraces on level 11. Some level 11 areas were common property. The respondent, The Owners – Strata Plan 61131, was the owners corporation for the scheme under s 9 of the Strata Schemes Management Act 2015 (NSW) (SSM Act): [1].
The dispute concerned a series of proposed terrace works. The particular works central to this appeal involved removing and replacing tiles and waterproofing on the western terrace. Colman applied for approval on 7 January 2020. The owners corporation did not approve those waterproofing works, despite a later proposal for a by-law being put to an annual general meeting: [2]. The Court noted that the waterproofing membrane and new tiles were installed between about 21 February and 2 March 2020: [19].
Colman applied to the NSW Civil and Administrative Tribunal (NCAT) on 16 September 2021 for relief that included orders under s 126 and damages under s 232 of the SSM Act for alleged breaches of the owners corporation’s duties under s 106: [3]. NCAT dismissed his application in June 2023. The Tribunal appeal panel dismissed his appeal on a question of law in November 2023: [3].
Colman then sought leave to appeal to the Supreme Court on a question of law under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW). Kirk J granted leave on some grounds but dismissed the appeal on 20 February 2025: [4]. Colman sought leave to appeal from Kirk J’s orders, but only in relation to matters on which Kirk J had granted leave and dismissed the appeal: [4].
Before the Court of Appeal, Colman relied on one proposed ground: that Kirk J, the appeal panel, and NCAT had constructively failed to exercise jurisdiction when determining whether the owners corporation had breached s 106. His oral submissions narrowed this to three matters: alleged oversight of evidence and Tribunal reasons; an alleged failure to decide a separate claim concerning ducting works; and an alleged failure to address an ongoing breach arising from the owners corporation’s failure to carry out waterproofing work: [10]–[11].
The Court dismissed the summons and ordered Colman to pay the respondent’s costs: [51]–[53]. This was a leave decision about the alleged jurisdictional failure and the applicable leave threshold. It was not a fresh determination of the underlying s 106 dispute.
The Court began by setting out the meaning of constructive failure to exercise jurisdiction. It relied on Dranichnikov, where the High Court had described a possible failure to respond to a substantial, clearly articulated argument relying on established facts, and a basic misunderstanding of an applicant’s case serious enough to undermine the lawfulness of the decision: [23]. The Court then relied on Ming to emphasise that such a claim must not become a disguised challenge to the merits or an argument that a decision-maker misunderstood or insufficiently grappled with a point: [24].
The distinction mattered because decision-makers are not required to discuss every submission or item of evidence in their reasons. The alleged failure must concern an issue of sufficient significance that the decision-maker has not completed the exercise of power, because it failed to engage with an important issue: [24]. The Court summarised the threshold as requiring more than a failure to consider evidence or address an argument. It requires a failure to understand and determine a central or critical element of the case, or a fundamental misunderstanding of the application: [25].
On the evidence and Tribunal-reasons contention, the Court found that Kirk J had understood and dealt with the main points Colman said were overlooked. Kirk J had addressed the claimed contradiction between a passage in the Tribunal’s reasons about the owners corporation’s understanding of the leak and the Tribunal’s later reasoning about whether the owners corporation had breached s 106: [29]–[30]. He had also considered Mr Lucas’ report, which described the condition of the terrace and the advice that the waterproofing could not be guaranteed unless a broader area was replaced: [31]–[33]. The Court rejected the claim that Kirk J had simply adopted the Tribunal’s reasoning without considering that material: [33].
The Court also considered the complaint that Kirk J had not referred to Mr Midas’ emails. Although Kirk J did not mention those emails, the Court concluded that the issues as framed before him did not require separate discussion of them. It inferred that the focus of the submissions was Mr Lucas’ report, which captured the essential point that the waterproofing works followed a view that the terrace required waterproofing: [34]. The Court added that a party’s failure to draw evidence to the judge’s attention was an unpromising basis for alleging constructive failure to exercise jurisdiction: [38].
The ducting contention failed because the Court could not identify a clear, separate claim about the costs of ducting works as an issue put to Kirk J. The documents relied on referred to ducting as an example of ancillary works or used it in submissions about the construction of s 106. The Court did not read them as a clearly articulated contention that the Tribunal or appeal panel had failed to determine an independent damages claim arising from the ducting works: [41]–[46]. It also noted uncertainty about whether that distinct claim had ultimately been pressed before NCAT or its appeal panel: [47].
Finally, the Court rejected the argument that Kirk J had failed to address a claim based on an ongoing breach. The issue identified before Kirk J was a claim for damages to cover the costs of carrying out the waterproofing works: [48]. Colman had not clearly articulated a different claim for loss caused by an ongoing breach: [49]. Kirk J had therefore not constructively failed to determine the case that was put to him.
This judgment did not announce a new test for constructive failure to exercise jurisdiction. It applied the established approach described through Dranichnikov and Ming: a decision-maker need not address every item of evidence or every submission, but must engage with substantial, clearly articulated arguments central to the matter: [23]–[25].
The judgment’s contribution is principally an application of that threshold to a leave application arising from strata proceedings. The Court treated the distinction between a jurisdictional failure and a disagreement about reasoning or fact-finding as important. Kirk J’s failure to mention a particular email, or an alleged failure to make a different assessment of evidence, did not itself establish that he had failed to exercise jurisdiction: [32]–[38].
The Court also applied the leave threshold stated in Kassam v Hazzard; Henry v Hazzard. The applicant had to identify an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something merely arguable: [12]. Because the proposed contentions did not establish an arguable constructive failure, the asserted public-interest and systemic concerns did not provide a basis for leave: [50].
The decision should not be read as resolving the substantive scope of s 106 or the availability of damages under s 106(5) in every situation involving unapproved works. At [49], the Court recounts Kirk J’s conclusion that damages could not be claimed for completed works that had not been approved prospectively or retrospectively. The Court of Appeal’s decision, however, was that no constructive failure to exercise jurisdiction had been shown in the way that issue was dealt with. Its reasons do not set out an independent, comprehensive construction of s 106.
At [24], the Court explains the risk in constructive-failure arguments: “claims about failure to address matters can shade into claims about arguments having been resolved incorrectly because misunderstood, or not really grappled with, which tends towards merits or appellate review.” In plain English, saying that a judge misunderstood an argument is not enough by itself. The complaint must show something more serious than a disagreement with how the judge dealt with it.
At [25], the Court states that constructive failure “requires more than a failure to consider evidence or address an argument or submission.” This marks the boundary between an ordinary challenge to reasons and a claim that the decision-maker failed to carry out the task at all. The missing issue must be central or critical, or the decision-maker must have fundamentally misunderstood the application.
At [38], the Court observes that “it is for the parties to present their respective cases to the Court.” It explains that a failure by a party to draw evidence to the Court’s attention is an unpromising basis for claiming constructive failure. The point is not that evidence can never reveal a jurisdictional problem, but that the alleged failure must be assessed against the case actually presented.
At [44], the Court distinguishes a submission about the proper construction of s 106 that used ducting works as an example from a clearly articulated claim that the Tribunal had failed to determine a separate ducting damages claim. The distinction illustrates why the way a point is formulated and presented mattered to this application.
At [50], the Court states that the proposed grounds did not identify an arguable constructive failure and that the asserted public-interest concerns fell away. In plain English, the Court found that Colman’s complaints did not meet the legal threshold for permission to appeal, rather than deciding the underlying terrace dispute afresh.
The decision is relevant where a party alleges that a court or tribunal constructively failed to exercise jurisdiction because it did not address evidence, a submission, or a claimed issue. The central question, as expressed in [24]–[25], is whether the alleged omission concerns a substantial, clearly articulated argument that is central or critical to the case, rather than an argument about the correctness of the decision-maker’s reasoning or evaluation of evidence.
It may be particularly relevant where the alleged omission concerns material that was not clearly identified in submissions, was mentioned only as an example, or was not among the issues the primary judge understood to be advanced. The Court’s treatment of the ducting material shows that a general reference to work or costs does not necessarily demonstrate that a distinct claim was clearly put and left undecided: [41]–[47].
It may also be relevant where a party says a judge ignored a document. The Court considered what Kirk J had addressed, how the issues had been framed, and whether the omitted document added something materially different from evidence already considered: [31]–[35]. A judgment’s silence about a particular document did not, on these facts, establish constructive failure.
The decision does not establish that every failure to mention evidence is immaterial, or that an omitted issue can never amount to jurisdictional failure. Its analysis is tied to the matters Colman said were put before Kirk J and to the material available to the Court of Appeal. The judgment also notes that the transcript of the hearing before Kirk J was not before it: [6]. The Court therefore proceeded on the basis of Kirk J’s account of how the issues were raised.
The judgment is dated 4 September 2025. The material supplied contains no later judgments discussing or applying it. It is therefore not possible to say, on this source alone, how later courts have treated Colman.
The reasoning in this judgment itself draws on earlier authorities. It relies on Dranichnikov for the possibility that failure to respond to a substantial, clearly articulated argument, or a fundamental misunderstanding of the application, may amount to constructive failure: [23]. It explains the caution expressed in Ming that such arguments can shade into merits complaints, and that reasons need not address every argument or item of evidence: [24]–[25]. It also refers to Day and CZA19 in support of the requirement that the failure concern a central or critical element of the case: [25].
The judgment applies Kassam v Hazzard; Henry v Hazzard to the leave threshold: [12]. These authorities are part of the reasoning supporting the result in Colman; the judgment does not state that it overrules or departs from them.
The judgment does not determine the full substantive meaning of s 106 or settle the availability of damages where an owner undertakes work without prior approval. It records Kirk J’s conclusion about damages for completed, unapproved works but decides the Court of Appeal application on the narrower ground that no constructive failure to exercise jurisdiction was shown: [49]–[51]. The precise statutory question was therefore not independently resolved by the Court of Appeal in this judgment.
The decision also leaves dependent questions about the factual circumstances in which an owners corporation may be in breach of s 106 where waterproofing is defective, and how approval, urgency, causation, and loss may bear on a damages claim. The reasons do not decide those questions on their merits. The appeal was confined to whether the asserted omissions amounted to constructive failure and justified leave.
A further practical question is how clearly a distinct claim must be presented in proceedings before a complaint that it was overlooked can be assessed. The Court found that the materials it identified did not show that a separate ducting damages claim had been clearly articulated before Kirk J, while also noting that the full record of the Tribunal and appeal-panel proceedings was not available: [41]–[47]. The judgment’s conclusion is accordingly based on the procedural record before the Court, not a general ruling that ducting-related claims cannot arise under s 106.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Colman v The Owners – Strata Plan 61131 [2025] NSWCA 203
Hearing dates: 26 August 2025
Date of orders: 4 September 2025
Decision date: 04 September 2025
Before: Stern JA; Price AJA
Decision: (1) The summons filed by Mr Colman on 22 May 2025 seeking leave to appeal from the orders of Kirk J on 20 February 2025 is dismissed.
(2) The applicant is to pay the respondent’s costs.
Catchwords: CIVIL PROCEDURE — Court of Appeal — application for leave to appeal — whether primary judge constructively failed to exercise jurisdiction in determining whether the respondent had breached its obligations under s 106 of the Strata Schemes Management Act 2015 (NSW) — where none of the applicant’s contentions of error identified any arguable constructive failure to exercise jurisdiction by primary judge — where applicant therefore failed to identify issue of principle, question of public importance or reasonably clear injustice going beyond something merely arguable — where leave to appeal refused with costs
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 80, 83(1)
Strata Schemes Management Act 2015 (NSW), ss 9, 106, 232
Cases Cited: Colman v The Owners – Strata Plan 61131 [2023] NSWCATAP 308
Colman v The Owners – Strata Plan 61131 [2025] NSWSC 63
CZA19 v Federal Circuit Court of Australia (2021) 285 FCR 447; [2021] FCAFC 57
Day v SAS Trustee Corporation [2021] NSWCA 71
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088
Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299
Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209
Category: Principal judgment
Parties: Gary Colman (Applicant)
The Owners – Strata Plan 61131 (Respondent)
Representation: Counsel:
G Colman (in person)
DF Elliott (Respondent)
Solicitors:
Grace Lawyers Pty Ltd (Respondent)
File Number(s): 2025/100515
Publication restriction: Nil
THE COURT: The applicant, Mr Gary Colman, is the owner of Lot 147 in a strata scheme at a residential building in Pyrmont, NSW, known as the Palladium. Lot 147 is an apartment on level 10 of the Palladium and Mr Colman’s title includes a rooftop terrace on level 11, comprising a western and eastern terrace. There are also common property areas on level 11. The respondent is the owners corporation of the strata scheme for the Palladium under s 9 of the Strata Schemes Management Act 2015 (NSW) (SSM Act). The dispute giving rise to these proceedings relates to requests made by Mr Colman in 2019 and 2020 for approval of building works to be carried out on the terrace of Lot 147, some of which affected common property.
Some of these requests were approved but an application dated 7 January 2020 by Mr Colman for approval of building works including the removal and replacement of tiles and waterproofing on the western terrace of Lot 147 (the waterproofing works) was not approved. It is common ground that, despite a subsequent proposal for a by-law approving the waterproofing works being put to an annual general meeting of the respondent, these works were never approved by the respondent.
On 16 September 2021 Mr Colman applied to the New South Wales Civil and Administrative Tribunal (the Tribunal) seeking relief including, relevantly, an order under s 126 of the SSM Act and damages under s 232 of the SSM Act for alleged breaches of the respondent’s duties under s 106 of the SSM Act. Whilst we do not have either the Tribunal’s decision (and it is not published on the NSW Caselaw website), or the application to the Tribunal, it appears from the decision in the subsequent appeal proceedings, Colman v The Owners – Strata Plan 61131 [2023] NSWCATAP 308 (discussed below), that these orders were sought in respect a range of works including the waterproofing works. On 7 June 2023 the Tribunal dismissed Mr Colman’s application. On 17 November 2023 the appeal panel of the Tribunal dismissed an appeal by Mr Colman on a question of law under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) against that decision (the appeal panel decision).
Mr Colman then sought leave to appeal from the appeal panel decision to the Supreme Court of NSW on a question of law under s 83(1) of the CAT Act. On 20 February 2025, Kirk J granted leave to appeal on some but not all of the grounds advanced but dismissed the appeal with costs: Colman v The Owners – Strata Plan 61131 [2025] NSWSC 63 (unless otherwise indicated, references in this judgment to [#] are to paragraphs in this judgment). By summons filed 22 May 2025 Mr Colman seeks leave to appeal from the orders of Kirk J, but (as he indicated in his oral submissions before this Court) only as regards the matters where his Honour granted leave to appeal but dismissed the appeal.
(1) Did the Tribunal and Appeal Panel err in law in finding that Mr Colman could not claim damages under s 106(5) of the SSM Act to cover the costs of carrying out the Relevant Works [being the waterproofing works]:
(a) by constructively failing to exercise jurisdiction in relation to matters put; or
(b) on the basis that he had not sought or been granted approval for those works prior to undertaking them, where Mr Colman asserted that doing so was not required by the statutory scheme (grounds 1 and 4 of the summons)?
(2) Did the Tribunal err in law in declining to make an order under s 126(2) of the SSM Act retrospectively approving the Relevant Works because the defendant had not unreasonably refused its consent as there had been no motion seeking such consent put to a general meeting of the owners corporation (ground 3(2))? Mr Colman submitted that it was not necessary that a refusal be manifest in this way.
(3) Does by-law 44, correctly construed, constitute either an approval of the Relevant Works or an authorisation for the defendant’s strata committee to grant such approval (ground 2)? Mr Colman submitted that it was either one or the other.
As I understood it, in the end Mr Colman’s complaint was in substance two-pronged. First, his complaint was framed in terms of constructive failure to exercise jurisdiction in determining whether the defendant had breached its obligations under s 106 in relation to the waterproofing on the western terrace by failing to consider a claimed admission noted at [the Tribunal’s decision at] [15], by failing to deal with certain “unchallenged evidence”, and in circumstances where there was no evidence or submission to the contrary. This argument was also expressed in terms of unreasonableness, but it is not apparent how that argument adds anything.
…
Second, he alleged that the rejection of his claim for damages under s 106(5) was based on the Tribunal’s view that an owner who carries out repair and maintenance work on common property is not entitled to damages for breach of s 106(1) unless they have raised the requirement for the work with the owners corporation prior to completing the work, and that this view is erroneous.
[T]he issues raised in this Court – at least in the end – focused on a narrower set of facts and circumstances than had been raised before the Tribunal. In part that seems to reflect some lack of clarity and precision in the arguments put to the Tribunal. In any event, counsel appearing for Mr Colman in this Court indicated that all factual issues now relevant were “directed to the western terrace” and, as I understood it, focused only on a subset of works which was the subject of the building works application made on 7 January 2020, which I have labelled the Relevant Works. As I indicated above at [2]-[3], quite what the Relevant Works consisted of was not made clear, but the key focus in this Court seemed to be on the complete replacement of the waterproofing and tiling. Thus, for example, Mr Colman’s primary written submissions complained that the defendant “refused to decide whether or not to consent to the works”, where it was “quite clear that the works – the tiling and waterproofing – to the western terrace were urgent in late 2019 and 2020”.
Consistent with our approach as set out above at [6], we approach Mr Colman’s application for leave to appeal on the premise that the three issues ultimately raised by Mr Colman before Kirk J were as described above.
Before this Court, Mr Colman raises only one proposed ground of appeal. He alleges that Kirk J (and the appeal panel and the Tribunal) constructively failed to exercise jurisdiction in determining whether the respondent had breached its obligations under s 106 of the SSM Act. Whilst in his draft notice of appeal Mr Colman alleges six sub-grounds, in his oral submissions he confirmed that he relies only upon three matters as constituting a constructive failure to exercise jurisdiction:
That in his Honour’s analysis of whether the appeal panel had erred in rejecting Mr Colman’s claim for damages under s 106(5) of the SSM Act arising out of the waterproofing works (at [107]-[118]), Kirk J ignored or overlooked evidence which supported Mr Colman’s contentions or aspects of the Tribunal’s decision which were plainly wrong (the evidence and Tribunal reasons contention).
That Kirk J did not deal at all in his judgment with Mr Colman’s complaint of breach of s 106(5) of the SSM Act by the respondent as regards what Mr Colman describes as the “duct relocation and easement gateway claim for work undertaken … to repair” the common property (the ducting works). Mr Colman says that this work had been approved by the respondent by by-laws 52 and 54, which according to the decision of the appeal panel, were passed at an annual general meeting of the respondent on 16 November 2020. Mr Colman contends that the issue of the costs of the ducting works to the ducts was not addressed by the Tribunal (the ducting contention).
That Kirk J erred because his Honour approached Mr Colman’s contentions of breach of s 106(5) of the SSM Act by asking whether such a claim was available in circumstances where the relevant building works were not approved by the respondent. Mr Colman contends that his Honour constructively failed to deal with his claim that the relevant breach entitling him to damages was an ongoing breach of s 106(5) of the SSM Act constituted by the respondent’s ongoing failure to carry out the waterproofing works (the breach contention). He contends that Kirk J should have found that the respondent was in breach of s 106 of the SSM Act and that entitled Mr Colman to damages for that harm.
We address Mr Colman’s application for leave to appeal by reference to these three matters. As is apparent, these grounds seek to challenge only Kirk J’s approach to the first issue before his Honour, as identified above at [6]-[7].
For the reasons set out below, Mr Colman has failed to identify an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 at [25]-[27] (Bell P, Meagher and Leeming JJA agreeing). In these circumstances, leave to appeal is refused with costs.
From 2015 Mr Colman and his wife, Ms Jackie Colman, had been communicating to the respondent their intention to renovate the terrace area on Lot 147. In early 2019 the owner of the apartment immediately below Lot 147, Mr George Efthimiadis (referred to as Mr Midas) complained to the respondent about water ingress from Lot 147. By 1 November 2019 the respondent approved building works to repair an expansion joint on the terrace of Lot 147, which were to be carried out by AussieBuild. This is the trading name of a building company operated by Mr Midas. The scope of work included the removal of “hob and bricks over and around [the] expansion joint and 2 rows of surrounding tiles”. Also on 1 November 2019 Ms Colman sent an email to representatives of the respondent saying that the waterproofing of all the rooftops in the building seemed to be failing and requesting re-waterproofing and re-tiling of the western and eastern terraces of Lot 147 at the respondent’s expense. A representative of the respondent replied that the respondent was unlikely to agree to pay for such works and that they would have to be considered at the upcoming annual general meeting, but it does not appear that they were put to that meeting which occurred on 3 December 2019.
On 7 January 2020 Mr and Ms Colman applied to the respondent for approval of a range of works, said to be “new work” and “due to emergency joint repair”, including the waterproofing works. There was email correspondence between Mr or Ms Colman and representatives of the respondent on 11-12 January 2020 which, amongst other things, raised the possibility of an inspection of the terrace by the respondent. It is not clear from this correspondence when the waterproofing work commenced, but in these emails the work is said to be “at waterproofing stage now” and it is said that “stopping it exposes all of the consequences of being exposed with rain forecast for a number of days”. That suggests that at least the tiles had by then been removed. These emails also referred to “the builder, George” which appears in context to be a reference to Mr Midas, noting that some of the emails were copied to Mr Midas. In these emails the waterproofing works are described as arising out of the emergency joint repair, as being necessitated by that work, and as “connected, directly consequential EJ [emergency joint] related work”.
By email of 12 January 2020 at 5.35 pm Ms Reed, on behalf of the respondent, told Ms Colman that “strictly no works other than those previously approved should be undertaken.” It appears that a cease works letter was issued by the respondent on 14 January 2020.
There followed emails from Mr Midas on 16 and 17 January 2020 to representatives of the respondent about the waterproofing works. He explained in these emails that what was done on the terrace was done to waterproof and certify the terrace, that a simple patch could not be certified and that all this was at no expense to the respondent as the owners of Lot 147 were prepared to cover the cost on the additional scope. He said that “[a]s a result of us not being able to complete the waterproofing” on the terrace, water had come into his property. He also explained that it “was only when we had opened everything up and discovered the extent of the waterproof failure that the entire balcony required waterproofing and correct drainage”. He said this “became an urgent item”. He added:
To add to this we were also aware that the owners of lot 147 have had intentions of renovating their balconies.
This is a report regarding the removal of the waterproof membrane on the balcony roof top of apartment 147/102 miller st Pyrmont
We were engaged by the owners corporation to fix the expansion joint as it was leaking into unit 169 …
As we started to remove the tile bed, it was coming off in large blocks, crumbling and was drummy. We discovered the tile bed waterproofing was wet underneath, delaminated from the slab and mouldy with water still present.
We were advised by the water proofer that he could not guarantee the water proofing for the original area as the rest of the area was affected. For the water proofing to be guaranteed the whole balcony tiling and bed needed to be removed, slab preparation to be done and the new proposed footprint needed to be installed before any water proofing could be done. If any walls were installed after the waterproofing was done it would compromise the new waterproofing membrane and void the guarantee and certification.
The owners of apartment 147 advised us that they were planning to renovate the whole balcony. Accordingly, based on their proposed new works they instructed us to remove the rest of [the] tiles, bed and waterproofing and reinstate new waterproofing at apartment 147 roof top balcony at their expense.
The reinstatement of the water proofing is in line with the plans of the owners of apartment 147.
This suggests that Mr and Ms Colman instructed AussieBuild to carry out the waterproofing works and also agreed with AussieBuild that they would pay for those works.
The waterproofing membrane and new tiles (both part of the waterproofing works) were installed between about 21 February 2020 and 2 March 2020: [27].
The application for approval of the waterproofing works was considered at a strata committee meeting of the respondent on 16 March 2020 (along with a number of other building works approval applications by Mr and Ms Colman) and was not approved: [32].
At the respondent’s annual general meeting on 16 November 2020 Mr and Ms Colman proposed special by-law 56 which was expressed to encompass works which were “part of” the application of 7 January 2020: [33].
As to the ducting works, on 17 November 2020, HVAC Solutions wrote to Ms Colman about proposed work involving the demolition and modification of some ductwork on the terraces of Lot 147. A Fire Engineers Advice dated 14 December 2020 also relates in part to the proposed ductwork modifications and raises issues of noncompliance as regards ductwork.
It is convenient to begin with the ambit of error characterised as a constructive failure to exercise jurisdiction. In this regard, Mr Colman relies upon the variant of constructive failure to exercise jurisdiction identified by the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088. In that case, Gummow and Callinan JJ (with whom Hayne J agreed) at [24]-[25] explained that a constructive failure to exercise jurisdiction could arise from a failure “to respond to a substantial, clearly articulated argument relying upon established facts” and Kirby J at [88] referred to a “basic misunderstanding of the case brought by an applicant” that is “so serious as to undermine the lawfulness of the decision in question in a fundamental way.”
As subsequently explained in Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 at [15]:
A risk with this type of argument is that claims about failure to address matters can shade into claims about arguments having been resolved incorrectly because misunderstood, or not really grappled with, which tends towards merits or appellate review. Further, as discussed below, it is not necessary for judicial decision-makers to address every argument or every piece of evidence in delivering reasons. Hence the need to show that there has been a failure to grapple with a substantial, clearly articulated argument. That language has been reiterated by members of the High Court: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [13] (Bell, Gageler and Keane JJ) and [105] (Nettle and Gordon JJ); Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; [2022] HCA 17 at [27] (Kiefel CJ, Keane, Gordon and Steward JJ). The failure to address an issue must be of such significance as to warrant a conclusion that the decision-maker has failed to complete the exercise of its power by reason of having failed to engage with an issue of importance to the matter being resolved.
As the analysis in Ming at [15]-[17] shows, a constructive failure to exercise jurisdiction requires more than a failure to consider evidence or address an argument or submission. It requires a failure to understand and determine central or critical elements of the case or claim or a fundamental misunderstanding of the nature of an application: see eg Day v SAS Trustee Corporation [2021] NSWCA 71 at [37] and CZA19 v Federal Circuit Court of Australia (2021) 285 FCR 447; [2021] FCAFC 57 at [34].
It should be observed that the proposed grounds of appeal relied upon by Mr Colman do not include a failure by Kirk J to give adequate reasons, the ambit of which was considered in Ming at [41]-[42], a passage to which Mr Colman took the Court during his oral submissions.
In support of the evidence and Tribunal reasons contention, which focusses on Kirk J’s reasons at [107]-[118], Mr Colman relies upon essentially three matters.
First, he contends that, at [110], Kirk J extracted what his Honour described as the “key impugned parts of the Tribunal’s reasoning”, comprising [190]-[194] of the Tribunal’s reasons but that his Honour did not identify errors in the Tribunal’s reasoning or contradictions between these paragraphs and the Tribunal’s reasons at [15] or the evidence more generally. The relevant paragraphs of the Tribunal’s reasons are:
[190] The Tribunal does not accept that the applicant’s works were a necessary repair of common property that the Lot owner was authorised to perform, nor that there is a causal nexus between all of the works performed to the Western Terrance by the Lot owner, and any alleged failure of the owners corporation to comply with its duty under s 106 (1) of the SSM Act.
[191] Usually, a Lot owner cannot perform repairs to common property without the prior knowledge and consent of the owners corporation (The Owners-Strata Plan 32735 v Lesley-Swan [2012] NSWSC 383 at [191] and [197]-[197]). That principle may be departed from in limited circumstances, such as where a strata committee has approved the original repair works and then subsequently seeks an order that the Lot owner restore the common property because no special resolution or common property rights by-law has been passed (The Owners-Strata Plan No 63607 v Kinsella [2022] NSWCATAP 184); or in unusual circumstances such as where limited and urgent repairs are required and the Lot owner cannot reasonably seek prior consent of the owners corporation to the performance of the works.
[192] As discussed previously, in this matter the applicant asserts that due to Mr Lucas stating that when some terrace floor tiles were removed he noticed that there was moisture between the tiles and the membrane, and from this (and advice purportedly given by the builder) the applicant decided it was appropriate to replace the entire waterproofing membrane and the tiles of the Western Terrance.
[193] However, even if this version of [sic] is accepted, neither the builder nor the applicant immediately notified the owners corporation and sought approval for the purported repairs to the waterproofing membrane.
[194] Further, the very limited evidence does not establish that the owners corporation was in breach of its duty under s 106 (1) of the SSM Act in respect of the condition of the waterproofing membrane of the Western Terrace balcony as of 16 December 2019 in any event. There was no evidence of any water ingress from the balcony (as distinct from the expansion joint) that affected any other Lot. AussieBuild Pty Ltd or Mr Midas had never raised with the owners corporation that the membrane may need to be replaced in the course of repairing the expansion joint. The evidence does not establish that replacement of the entire waterproofing membrane was necessary for the owners corporation to comply with its duty under s 106 (1) of the SSM Act as a result of the works to repair the expansion joint, or otherwise.
It appears that, for reasons that were not clearly set out in the evidence, the owners corporation was satisfied that the water leak was caused by failure of waterproofing proximate to an expansion joint in the floor of the open courtyard of Lot 147.
His Honour was thus aware of what Mr Colman submitted was a “contradiction” and at [114] then rejected this submission.
As to the evidence considered by Kirk J, having referred to the report of Mr Lucas extracted at [17] above, his Honour observed at [26]:
Notably, the [report] indicates that lifting of some of the tiles exposed a broader waterproofing problem than had been understood. That problem had ramifications for whether the limited waterproofing work being done could be “guaranteed”. The waterproofing issue was one involving common property – that was why the defendant was covering the cost of the work being done. Thus the absence of a guarantee was an issue for the owners corporation. However, the Colmans made their own decision to instruct AussieBuild to undertake that broader work. That broader work was consistent with what they had previously raised with the defendant, but for which they had not previously put in a formal building works application, and for which they had not been given approval. The Colmans also apparently told AussieBuild that this work was to be “at their expense”. Yet in the Tribunal proceedings they sought that the defendant pay for that work, amongst other things.
Kirk J at [115]-[116] noted Mr Colman’s contention that, contrary to [194] of the Tribunal’s reasons, this report was “unchallenged” evidence from the builder that established that the membrane on the terrace needed to be replaced, and which the Tribunal had not dealt with. Kirk J rejected this criticism of the Tribunal’s reasons, finding that it was a matter for the respondent whether or not there was a guarantee for the works in the area of the expansion joint, that the Tribunal had quoted Mr Lucas’ letter at length and that Mr Colman’s complaint was really a challenge to the Tribunal’s fact-finding. Kirk J was thus aware of, and rejected, Mr Colman’s submission that the Tribunal had ignored or overlooked evidence.
In light of the careful reasoning of Kirk J, Mr Colman’s contention that his Honour simply adopted the Tribunal’s reasoning uncritically, or did not consider the underlying document described at [26], is rejected.
Second, Mr Colman submits that Kirk J was unaware of and did not consider Mr Midas’ emails of 16 and 17 January 2020, summarised above at [16]. Kirk J did not refer to these emails in his judgment. However, given the way the issues were framed before his Honour, as set out at [6]-[8] above, there was no need for his Honour to do so. The matters raised by Mr Colman before his Honour were whether there was a constructive failure to exercise jurisdiction by the Tribunal having regard to the Tribunal’s reasons at [15], Mr Lucas’ letter and the submissions of the respondent before the Tribunal. Whilst the outline of submissions filed on Mr Colman’s behalf on 21 July 2024 in the proceedings before Kirk J referred to “the unchallenged record from the builder, who had relied on advice from a waterproofer”, that is more aptly construed as a reference to Mr Lucas’ report which actually refers to being “advised by the waterproofer”, whereas Mr Midas’ emails simply refer to the contractor not being able to certify or guarantee the works. In any event, we infer from Kirk J’s judgment that it was Mr Lucas’ report and not Mr Midas’ emails that was the focus of submissions before his Honour. In any event, Mr Lucas’ report captured the essential point of Mr Midas’ emails, which was that the waterproofing works took place after AussieBuild formed the view that the terrace required waterproofing.
Further, to the extent that Mr Colman relies upon the emails from Mr Midas as also showing that an opportunity was given to the respondent to inspect the terrace, that submission does not support a finding of constructive failure to exercise jurisdiction for the reasons given below at [36]-[38].
Third, Mr Colman submits that Kirk J did not consider or assess evidence that the respondent was given repeated and timely opportunities to inspect the terrace and to act on this. In support of this submission Mr Colman focusses upon [117], where Kirk J says:
In written submissions filed (with leave) after the hearing, Mr Colman raised a new argument that “the position of the owners corporation before the Tribunal was consistently that the waterproofing had failed and the issue was not new”. This argument was supported by a quotation from the defendant’s written submissions before the Tribunal which offered some support to the claim. However, three paragraphs further on in those submissions the defendant referred to Mr Colman’s claim that the waterproofing under the majority of the western terrace tiles had failed, and said “[t]here is no evidence of that – only that an area of the terrace was ‘affected’”. The submission then added that the “opportunity to properly investigate the extent and degree to which the waterproofing was affected was destroyed by the Colmans’ unilateral conduct”. In this context it cannot be said that the claimed failure of the membrane was not in issue before the Tribunal.
Contrary to Mr Colman’s contention, this paragraph provides no support for his contention of error, which is rejected. The text quoted by Kirk J is from the respondent’s submissions before the Tribunal and not from the Tribunal’s reasons. Further, in this paragraph Kirk J was simply explaining why he rejected Mr Colman’s contention that the written submissions of the respondent before the Tribunal were an admission of a breach of s 106 of the SSM Act or otherwise supported a finding that the waterproofing issues on the terrace were not new. In any event, the issues raised before Kirk J, set out above at [6]-[8], did not include any contention that the Tribunal or the appeal panel had either made, or erred in making, a finding that Mr and Ms Colman had prevented the respondent from inspecting the terrace and, contrary to Mr Colman’s written and oral submissions.
Mr Colman’s further contention that, irrespective of whether this issue was raised by Mr Colman, Kirk J was required to examine the evidence to ascertain whether or not Mr and Ms Colman prevented the respondent from inspecting the terrace or whether Mr Midas raised the need for waterproofing with the respondent should also be rejected. It is for the parties to present their respective cases to the Court, and a failure by a party to draw the Court’s attention to evidence is an unpromising basis for a contention of constructive failure to exercise jurisdiction. In any event, contrary to Mr Colman’s written and oral submissions in this Court, there was no relevant factual dispute as to this that Kirk J needed to, or did, resolve, and his Honour referred at [28] to, and was thus well aware of, the application dated 7 January 2020, which asserted a need to carry out the waterproofing works.
Mr Colman submits that he had a claim before the Tribunal for breach of s 106 of the SSM Act arising by reason of the failure of the respondent to remedy a problem of non-compliant ducting blocking the passage to the fire stair and boilers in the plant room, creating serious occupational health and safety issues, and blocking access routes, which forced Mr and Ms Colman themselves to bear the costs of the ducting works. He says that none of the Tribunal, the appeal panel or Kirk J dealt with this contention and that a substantial and clearly articulated claim that he made was thus overlooked or ignored.
This contention faces insuperable difficulties.
First, Mr Colman submits that the issue of the Tribunal and appeal panel’s failure to deal with his claims arising out the ducting works was raised before Kirk J. In this regard he relies upon a footnote to [3(c)] of his opening written outline before Kirk J. That paragraph, in its entirety, reads:
3. First, whether the Panel erred in not finding error with the Primary Decision in relation to liability of the defendant under section[] 106 and entitlement to relief under section 232 as the Tribunal had:
…
(c) dealt with the unchallenged evidence from the builder engaged by the defendant to the effect that (1) when removing the tiles in accordance with the work order, the balance of the tiles came off in "large blocks", (2) the waterproofing had generally failed and (3) the advice from a waterproofer that the waterproofing could not be guaranteed until "the whole balcony tiling and bed" was removed etc before the waterproofing could be re-installed, the connection between the work on the expansion joint, the water proofing, the tilings and the works that were ancillary to shoring up the roof and other essential works4 in a manner which was unreasonable in all the circumstances.”
Footnote 4 referred to “works that were necessitated (for example, ducting works) and were consequent to a fire inspection report” which appears to be a reference to the report we have referred to at [22] above. There is nothing here which could be construed as a claim that the Tribunal and appeal panel erred in failing to resolve a separate claim for damages arising out of a failure by the respondent to pay for the ducting works.
Mr Colman also relies upon footnote 1 in [10] of his supplementary submissions filed after Kirk J gave leave to the parties to file supplementary submissions on a question of construction. In [10] and footnote 1, under the heading “Construction of section 106 of the Act”, it was submitted that Mr Colman had made a claim to the Tribunal which included a claim for the costs of ducting which was not addressed by the Tribunal and that:
If the underlying costs of doing what the owners corporation ought to have done, for which the plaintiff claimed reimbursement, were costs that were "reasonably foreseeable" and were the costs resulting from the failure to maintain common property, then the plaintiff may be reimbursed for such costs by way of an order for damages. The Tribunal would err – as it did here – if it were to disentitle an owner from claiming damages in the form of reimbursement of costs incurred by reference to notions such as approval / notice borrowed from nuisance.
This was a submission as to the proper construction of s 106 of the SSM Act using the ducting works as an example. It was not a clearly articulated contention that the Tribunal had constructively failed to exercise jurisdiction by not determining a claim arising out of the ducting works.
Second, the issues which Kirk J identified as being raised by Mr Colman, at [6]-[8] above, do not include any issue as regards the ducting works.
In these circumstances, we reject the contention this was a clearly articulated claim pressed by Mr Colman before Kirk J.
In any event, a claim for the cost of moving ventilation ducts was included as a particular of damage in a document described as “amended order details” which appears to have been before the Tribunal. However, as we do not have copies of all of the submissions before the Tribunal nor the transcript of the Tribunal or the appeal panel hearings, it is by no means apparent that a claim under s 106 of the SSM Act arising out of the failure of the respondent to pay for or arrange the ducting works was ultimately pressed as a clearly articulated claim before either the Tribunal or the appeal panel.
[W]hether the Tribunal erred in rejecting Mr Colman’s claim for damages under s 106(5) of the SSM Act to cover the costs of carrying out the Relevant Works (raised by grounds 1 and 4 of his summons).
It follows that Mr Colman’s contentions of error do not identify any arguable constructive failure to exercise jurisdiction by Kirk J. The issue of principle articulated by Mr Colman in his written submissions in support of his summons was that Kirk J had failed to apply the jurisdictional threshold of properly engaging with Mr Colman’s complaint. That issue necessarily falls away in light of our analysis of Mr Colman’s contentions. Contrary to Mr Colman’s written submissions, no concerns as to public confidence in judicial review are raised, nor is there any public interest of those in strata schemes that would be served by a grant of leave to appeal. Mr Colman’s submission that the ducting contention raises issues of safety also falls away once it is appreciated that work on the ducts was approved by the respondent and apparently completed. Moreover, we would not accept that the matters raised by Mr Colman are suggestive of any systemic failure in Tribunal practice or any lack of candour or honesty by corporate respondents.
In these circumstances, leave to appeal is refused.
There is no good reason why costs should not follow the event. Indeed, in Mr Colman’s Summary of Argument he accepted that there was no reason why a costs order should not be made in favour of the respondent if his application was refused.
The orders of the Court are:
The summons filed by Mr Colman on 22 May 2025 seeking leave to appeal from the orders of Kirk J on 20 February 2025 is dismissed.
The applicant is to pay the respondent’s costs.
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Colman
The Owners �e" Strata Plan 61131 [2025] NSWCA 203
(2021) 285 FCR 447
(2021) 106 NSWLR 520
(2022) 109 NSWLR 604
(2019) 264 CLR 421
(2022) 96 ALJR 497
The summons filed on 22 May 2025 seeking leave to appeal from Kirk J’s orders of 20 February 2025 was dismissed. The applicant was ordered to pay the respondent’s costs: [53].
The evidence before this Court comprised over 100 pages of documentary material, including some correspondence and reports relating to Lot 147, the application for approval of building works dated 7 January 2020, extracts from and in some instances complete copies of the submissions that were before the Tribunal and Kirk J, and the notice of appeal to the appeal panel and the summons before Kirk J.
In circumstances where the material tendered by Mr Colman does not include the transcript of the hearing before Kirk J, there is no basis for us to doubt the correctness of his Honour’s identification, at various points in his judgment, of the way in which Mr Colman’s contentions were put before his Honour. In particular, at [7] Kirk J noted that Mr Colman had “further explained” the subject of his complaint in oral submissions, and at [9] Kirk J identified that the three issues raised by Mr Colman were clarified in oral submissions as being: