Community Association DP 270244 v The Owners - Strata Plan 69205 - [2024] NSWCATAP 199 - NSWCATAP 2024 case summary

NCAT Appeal Panel|2024-06-03|Before: Community Association DP

Orr v Cobar Management Pty Ltd (2020) 103 NSW LR 36: [2020] NSW CCA 220 Oshlack v Richmond River Council 1993 CLR 72; [1998] HCA 11 Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 The Owners of Strata Plan No 3397 v Tate (2007) 70 NSWLR 344; [2007] NSWCA 207 The Owners - Strata Plan No. 55236 v Community Association DP No. 270003 (No. 2) [2018] NSWCATCD 37 The Owners - Strata Plan No 63731 v B&G Trading Pty Ltd [2020] NSWCATAP 202 Owners Corporation SP 80412 v Vickery [2018] NSWCATAP 29 Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 Weldon v Neal (1887) QBD 394 Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213 Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2 Texts Cited: Collins Dictionary, online ed, accessed 10 September 2024 Department of Planning, Housing and Infrastructure https://www.planning.nsw.gov.au/policy-and-legislation/open-space National Dictionary of Building & Plumbing Terms, online ed, accessed 10 September 2024 Category: Principal judgment Parties: Community Association DP No. 270244 (Appellant) The Owners Strata Plan No. 69205 (Respondent) Representation: Counsel: V Kerr SC (Appellant) D Knoll AM (Respondent)

Introduction

This appeal concerns two decisions made by the Tribunal in connection with various Strata and Community schemes, generally referred to as the Pacific Lakes Estate located at Lake Munmorah, in application number 2021/403537 (previously CL 21/26254) (proceedings).
In the proceedings, the applicant was The Owners - Strata Plan 29205 (the respondent in this appeal). The strata scheme was registered on 6 November 2002, which effected a subdivision of what was then known as Community Development Lot 15 in the community scheme. The respondent in the proceedings was Community Association DP 270244 (the appellant in this appeal). In these reasons I will refer to the appellant as the "association" or appellant and the respondent as the "owners corporation" or respondent.
The first decision was made on 29 January 2024. The Tribunal published reasons for decision. The orders in the reasons were subsequently amended on two occasions under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). While the second amended reasons were sent to the parties to this appeal after the hearing of the appeal on 3 June 2024, I note the need for the correction that was made (relating to making order 10A) was addressed at the hearing of the appeal. I will refer to the decision on 29 January 2024 and the reasons therefore, as amended, as the "January decision" or "JD". In doing so, I note the paragraph numbers used in these reasons of the Appeal Panel, are those in the original reasons. This is because the final version of the reasons at first instance, published to the parties by the Tribunal on 11 June 2024, erroneously started at paragraph 2 (at least on the Tribunal's copy).
The second decision, which became the subject of this appeal in consequence of a further amended Notice of Appeal filed 17 May 2024 (further amended Notice of Appeal) concerned the costs of the proceedings at first instance. The issue of costs was dealt with by the Tribunal "on the papers" following submissions of the parties, a decision and written reasons being published on 22 April 2024. I will refer to that decision as the "costs decision" or "CR".
In short, by the costs decision the association was ordered to pay one half of the owners corporation's costs on an ordinary basis as agreed or assessed.

History of the proceedings

The owners corporation is a member of the association under a community scheme created under the Community Land Development Act 1989 (NSW) (repealed) (1989 CLDA): see s 5(1) Community Land Management Act 1989 (NSW) (repealed) (1989 CLMA).
The owners corporation commenced the proceedings on 11 June 2021. Multiple orders were sought under six categories: 1. Orders relating to the maintenance, repair and replacement of specific property. 2. Orders relating to the responsibility for management and operational services for "subsidiary strata scheme no. 69205". 3. Orders relating to responsibility for costs for repairs, maintenance and replacement of "subsidiary strata scheme no 69205 common property". 4. Orders relating to the functioning of the association. 5. Orders relating to the reimbursement of the owners corporation for costs for restricted property. 6. Orders relating to damages for loss of rent, percentage of levies and council rates and charges, and interest on rent and contributions.
The proceedings originally sought orders from an adjudicator, a person appointed under Part 4 of Division 3 of the 1989 CLMA to resolve disputes as permitted by s 71 of that Act. However, when the proceedings came before the appointed adjudicator, she made orders on 14 October 2021 that the proceedings be referred to the Tribunal under s 71B of the 1989 CLMA. That section provides: 71B Matters that may be referred to Tribunal (1) An Adjudicator may refer to the Tribunal an application for an order if the Adjudicator is of the opinion - (a) that the application raises complex legal issues, or (b) that it should be referred because of its importance or the possible frequency of like applications, or (c) that there are other good reasons to refer the application. (2) This section does not confer on any person a right to have referred to the Tribunal an application for an order that may be made by an Adjudicator.
There is no dispute that the adjudicator was entitled to refer the proceedings to the Tribunal, or that the Tribunal had the power of the adjudicator to determine the matters, the subject of the original application. In this regard s 76 of the 1989 CLMA provides: 76 Applications referred to Tribunal by Adjudicator (1) If an Adjudicator refers to the Tribunal an application for an order that, but for the referral, could have been made by the Adjudicator, the Tribunal has the same powers as the Adjudicator - (a) to make an order under Division 3 other than an interim order, or (b) to dismiss the application. (2) Except in relation to a right of appeal to the Tribunal, this Act has effect in relation to an order made under subsection (1) as if the order were an order of an Adjudicator. (3) Subsection (2) does not exclude an appeal from an order of the Tribunal made under subsection (1).
However, as will become apparent from the reasons below, there is a dispute concerning whether the Tribunal was entitled, in the referred proceedings, to make orders under sections 80 and 82 of the 1989 CLMA. There is also a dispute concerning the power of the Tribunal to make a costs order in these circumstances.
It is unnecessary to set out all of the orders originally sought in the proceedings. Nor is it necessary to set out all the orders made. Rather, it is sufficient to set out the orders made by the Tribunal in the January decision which are the subject of this appeal as finally formulated in the further amended Notice of Appeal. These were orders 3, 13 and 15, 19 and 20 - 23.
For convenience, these orders are set out below, together with references to the paragraphs of the January decision where the Tribunal was considering the particular orders in question. I note that within some of the reasons referenced below, the Tribunal refers to other passages in the January reasons. As necessary, I will refer to those matters when considering each ground of appeal. Order 3 3. Order that the [owners corporation] perform to the Standard the remedial works set out at sections 6.1.2, 6.2.2, 6.4.2, 6.27.2, 6.28.2, 6.33.2 and 6.38.2 set out by Marek Blaszczakiewicz of Demlakian Strata & Remedial in his report dated 8 April 2019 ("hereinafter referred to in these orders as the "Demlakian Report"). January decision [126]-[179] Orders 13 13. Order that the [owners corporation] repair and replace (as necessary) the missing garden edging and conduct to the Standard the "Remediation Works" set out in section 4.8 of the Report of Terras Landscape Architects dated 14 March 2019. January decision [301]-[304] Order 15 15.Order that the [owners corporation] restore the landscaped and garden areas, and repair and replace the drip and spray irrigation system. In doing so the [owners corporation] must comply with its Architectural Code Pacific Lakes, and implement the "Remediation Works" set out in the sections 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.9, 4.10, 4.12, 4.13, 4.14, 4.15, 4.16, and 4.17 of the Report of Terras Landscape Architects dated 14 March 2019. January decision [307]-[317] Order 19 19. Order pursuant to (i) section 71 and 76 of the CLMA and (ii) clause 19 of Schedule 1 to the CLMA that: 19.1 the [owners corporation] do all acts necessary to implement and perform its Decision dated 21 August 2014 to pay Wyong Shire Council (now Central Coast Council) for the then outstanding charges for water service, sewer service in relation to meters 4046557, 8049286 and 8049122 ("Outstanding Charges"). 19.2 Order that the Outstanding Charges be paid within 28 days of the date of these Orders. January decision [331]-365] Order 20 20. Order pursuant to section 82 of the CLMA that: 20.1 Motions 18.1 and 19.1 resolved at the Annual General Meeting of the Community Association on 10 November 2020 are invalidated ; and 20.2 Motions 7.0 and 10.0 resolved on 1 May 2019 are invalidated. January decision [366]-[387] Order 21 21. Order that the application for orders under section 80 of the CLMA that clause 53.5 in the Community Management Statement for Deposited Plan 270244 be varied be adjourned for further Directions before the Tribunal. January decision [388]-[405] Order 22 22. Direction that prior to the Directions Hearing the Principal Registrar is to provide: 22.1 a copy of the applicant's Amended Points of Claim dated 19 June 2022, 22.2 a copy of this Decision, and, 22.3 notification of the Directions Hearing, 22.4 the Notice required by section 70B (2) of the CLMA. to each person who, in the Principal Registrar's opinion, would be affected if Order 5 as sought in Amended Points of Claim were made. January decision [388]-[405] Order 23 23. Direction that the Principal Registrar advise the persons referred to Order 22 that the applicant has also made an application for the following orders which are not included in the Amended Points of Claim: 1. Order that pursuant to section 80 of the Community Land Management Act 1989, the Term: a. "Subsidiary Accessway" is defined to mean: "Any access way forming part of Restricted Subsidiary Property is a Subsidiary Accessway." b. Clause 66.5 of the Community Management Statement be varied to oblige the Association to "control, manage, operate and maintain the Restricted Subsidiary Property, and to only replace such property with the consent of any affected Member." 2. Order that the respondent is to cause to be registered on title within 28 days an amended Management Statement for DP 270244 reflecting the amended clause 53.5. January decision [406]-[407]
A primary issue which the Tribunal sought to resolve concerned what common property of the owners corporation was required to be repaired and maintained by the association and who was liable to pay certain charges. This centred around what was Restricted Subsidiary Property, Subsidiary Accessways and Subsidiary Open Space Area for the purpose of the Community Management Statement (CMS) applicable to the community association. In turn, this required a consideration of both the CMS and the by-laws of the owners corporation (by-laws) and the common property in relation thereto.

Notice of Appeal and history of appeal proceedings

The original Notice of Appeal was filed on 19 February 2024. The appeal was filed in time.
Following directions of the Appeal Panel, the parties filed submissions and evidence in support of their respective positions. The hearing of the appeal occurred on 3 June 2024. Each party was represented by Counsel. As necessary, I will refer to the evidence and submissions below.
At the hearing, the Appeal Panel was advised that the appeal was limited to challenges in respect of orders 3, 13, 15, 19 and 20-23 and the costs decision.
The grounds of appeal finally relied upon in the Further Amended Notice of Appeal were as follows: Order 3 Ground 1: The Tribunal erred in finding that the Decking and External Building Elements comprises part of the "Community Hall" and thus comprises "Restricted Subsidiary Property" as that term is defined in clause 71.2 of the Community Management Statement (CMS) (at R [164]-[167]). Ground 3: The Tribunal erred in finding that the Decking also comprises "Restricted Subsidiary Property" by virtue of being "Subsidiary Accessway" within the meaning of CMS 53.5 (J) and By-law 1.1 of the Strata Scheme (at R [168]-[169]. Orders 13 and 15 Ground 5: The Tribunal erred in finding that: (a) strata by-law 26 was effective to enable the respondent to grant Restricted Subsidiary Property rights to the appellant on terms that are not been (sic) included in CMS 53.5 (at R [274]); and (b) accordingly, the grant by the respondent of restricted use to the appellant of the restricted common property in the CMS comprising the open space area outside buildings in Pacific Lakes Commercial (as those areas are defined in the Community Management Statement was effective (at R [275]). Order 19 Ground 10: The Tribunal erred in finding that the appellant was liable to meet the cost of all water passing through water metre with ID#8049286 (at R [364]), and failing to give effect to resolution 18.1 and 19.1 passed by the appellant at the annual general meeting on 10 November 2020 (at R [364]). Orders 20-23 Ground 6: The Tribunal erred in finding the Tribunal had jurisdiction on the referral of an adjudication application under section 71B of the Community Land Management Act 1989 (NSW) (CLMA) to hear and determine relief sought under sections 80 and 82 of the CLMA, being relief which was not the subject of a separate Strata and Community Schemes application at (at R [372]). Costs order Ground 11: The Tribunal erred in finding that the necessary implication arising from the exception in s 71(1) of the CLMA is that the Tribunal may, on application transferred to it by the adjudicator under s 71B of the CLMA, exercise the powers within its general jurisdiction, including the power to award costs under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). CR [34]-[36]. Ground 12: The Tribunal erred in failing to find: (a) there is an inconsistency between s 76 of the CLMA, which denies the Tribunal, on application transferred to it by an Adjudicator under s 71 B of the CLMA, the power to award costs, and s 60 of the CAT Act, which confers power on the Tribunal to award costs; and (b) the inconsistency is to be resolved, in accordance s 35 (sic) of the CAT Act, by giving precedence to s 76 of the CLMA, So that the Tribunal, on an application transferred to it by an Adjudicator under s 71B of the CLMA, has no power to award costs. CR [37]-[42]. Ground 13: If more one or more appeal grounds 1, 3, 5, 6 or 10 in file 2024/00064359 is upheld, then the Tribunal erred by finding that the result of the proceedings was substantially in favour of the Respondent at CR [45] and by having regard to the matters at CR [46 (a), (b), (d) and (f)] as matters supporting the award of costs to the respondent.
At the hearing of the appeal, I was provided with a diagram that became MFI 1. This was an A3 copy of a drawing provided in evidence showing the position of the "Function Hall" (which will be referred to as the Community Hall) and the decking (highlighted in orange) (Decking) which surrounded parts of the Community Hall. As will be apparent from these reasons, a question arose as to whether the Decking was part of the Community Hall or part of a Subsidiary Accessway within the meaning of the various documents constituting the community scheme.
In oral submissions, the appellant said there were three questions of law.
The first was said to relate to grounds 1, 3, 5 and 10. These involve the construction of the CMS for the association and the by-laws.
The second, ground 6, involved a question of whether the Tribunal had power in the particular proceedings to make orders under ss 80 and 82 of the CMLA.
The third, grounds 11 and 12, involved whether the Tribunal had jurisdiction to award costs.
In respect of ground 13, the appellant said this was a challenge to a discretionary decision requiring leave.
At this point I note the 1989 CLDA and 1989 CLMA were, respectively, replaced by Community Land Development Act 2021 (NSW) (2021 CLDA) and Community Land Management Act 2021 (NSW) (2021 CLMA), the earlier Acts were repealed from 1 December 2021. The Strata Schemes Management Act 1996 (NSW) (repealed) (1996 Management Act) was repealed and replaced by the Strata Schemes Management Act 2015 (NSW) (SSMA) which commenced on 30 November 2016. Nothing would appear to turn on this issue concerning the primary question being the proper construction of the constitutional documents of each of the parties and the obligations imposed thereby. As necessary, I will return to this question below.
However, in respect of costs, the 1989 CLMA was amended on 1 January 2014 (being the commencement date of this Tribunal) to delete section 104. This section provided: 104 Orders relating to costs An Adjudicator or the Tribunal may not make any order for the payment of costs except as specifically authorised by this Act or in relation to an order dismissing an application because: (a) the application is frivolous, vexatious, misconceived or lacking in substance, or (b) a decision in favour of the applicant is not within the jurisdiction of the Tribunal.
The repeal of s 104 will be considered when dealing with the aspect the appeal against the costs order made on 22 April 2024.
As is evident from the grounds of appeal, an issue is raised concerning orders 20- 23, permitting the owners corporation to seek orders under ss 80 and 82 of the 1989 CLMA.
Section 80, found in Part 4 Division 4 of the 1989 CLMA provides: 80 Order by Tribunal relating to variation of management statement (1) The Tribunal may, by order, revoke or vary a provision of the management statement for an association if the Tribunal considers the provision not to be in the best interests of - (a) the members of the association, or (b) the proprietors of neighbourhood lots or strata lots within the scheme to which the management statement relates. (2) Application for an order under this section may be made by - (a) a member of the association, or (b) the proprietor of a neighbourhood lot, or a strata lot, within the scheme, to which the management statement relates.
Section 82 provides: 82 Order by Tribunal relating to invalid resolution or election (1) If this Act was not complied with in relation to a meeting of an association at which a resolution was passed or an election held, the Tribunal may - (a) by order invalidate the resolution or election, or (b) refuse an application for such an order. (2) The Tribunal may not refuse to make an order under this section unless it considers - (a) that the failure to comply with this Act did not adversely affect any person, and (b) that compliance with this Act would not have resulted in a failure to pass the resolution, or would not have affected the result of the election. (3) Application for an order under this section may be made by - (a) a person entitled to vote on the motion for the resolution or at the election, or (b) the first mortgagee or covenant chargee of a lot of which the proprietor is a person referred to in paragraph (a).
Inter-alia, if the orders sought concerned powers conferred on the Tribunal, it was said these orders were not ones an adjudicator could make and/or could not be the subject of referred proceedings. In this regard s 71(1) of the 1989 CLMA provides: (1) Except in relation to a dispute or complaint referred to the Tribunal or only within the jurisdiction of the Tribunal, an Adjudicator may make an order for the settlement of a dispute or complaint to which an application under Division 2 relates, whether or not the order made is the order sought.
It was also said the application could not, in any event, be amended to include claims that had not first been the subject of notice by the Registrar of the Tribunal as required by ss 70B and 70C of the 1989 CLMA. In this regard, ss 70B and 70C provide: 70B Notice of application to be given (1) The principal registrar must give a copy of an application for an order under this Part to each person (other than the applicant) who, in the principal registrar's opinion, would be affected if the order sought were made. (2) The copy of the application must be accompanied by a notice stating that the person to whom the notice is given may make a written submission to the principal registrar within a time specified in the notice, or within a longer time specified in any further notice given by the principal registrar. (3) The principal registrar must give a notice to the applicant for the order stating that the applicant may make further written submissions to the principal registrar within a time specified in the notice, or within a longer time specified in any further notice given by the principal registrar. (4) The principal registrar may extend the time for the making of submissions by a further notice given to each of the persons to whom the original notice was given. (5) Subsections (2)-(4) do not apply to an application for an order under Division 6A (Enforcement of orders of Adjudicators and Tribunal and certain notices). 70C Procedure after time for making submissions has expired (1) This section operates after the time for making submissions on an application expires. (2) The principal registrar must refer an application for an order referred to in Division 3 to an Adjudicator. (3) The principal registrar must refer an application for an order referred to in Division 4 to the Tribunal. (4) If an application is referred to the Tribunal, whether by the principal registrar under this Division or by an Adjudicator under Division 3, the principal registrar must complete a notice containing the time and place at which, and the date on which, the Tribunal will determine the application. (5) The principal registrar must send a copy of that notice to the following persons so that the copy would, in the ordinary course of post, be received by the addressee not less than 7 days before the day specified in the notice for the determination of the application - (a) the applicant, (b) the association or strata corporation to which the application relates (if the owners corporation is not the applicant), (c) any person against whom the order is sought, (d) any person who made a submission on the application.
Again, as necessary, these matters will be dealt with below.

Consideration

Unless the decision being appealed is an interlocutory decision, there is a right of appeal on a question of law. Otherwise leave to appeal is required. In respect of an interlocutory decision, leave to appeal is required even if the grounds raised a question of law: s 80(2)(a) and (b) of the NCAT Act.

Preliminary comments concerning the right to appeal on a question of law

The appellant did not seek leave to appeal in the Notice of Appeal originally filed or in the Further Amended Notice of Appeal. As noted above, in oral submissions the appellant said all grounds, other than ground 13, raised questions of law.
Various grounds were challenged as not raising questions of law.
The respondent says that grounds 1 and 3 of the appeal do not raise questions of law. This complaint did not go to the form in which the issues were raised, but rather the substance of whether the each of these grounds are pure questions of law or mix questions, in effect seeking to challenge findings of fact. The particular challenges will be addressed below when considering each ground.
The respondent similarly said challenges on other grounds related to facts and were not permissible.
At this stage, it is convenient to set out the principles applicable to determining what is a question of law.
Referring to Lombard Farms Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADTAP 42 (Lombard) at [23], both parties accept that issues in respect of the construction of the CMS are questions of law. There, the Appeal Panel of the former Administrative Decisions Tribunal said: 23 From the authorities we have just cited we distil the following propositions particularly relevant to this matter: (1) The question whether a word or phrase is to be given its ordinary meaning is a question of law; (2) The question whether a word is used in a sense other than that in which it is used in ordinary speech is a question of law; (3) Where, objectively, there is uncertainty as to the meaning of a word, the process of construction raises a question of law; (4) The process of construing and the construction of an expression raise questions of law; and (5) Whether facts as found are capable of falling within a statutory provision, must necessarily fall within the statutory provision or must necessarily fall outside the statutory provision are questions of law.
The appellant also appears to accept the respondent's submission concerning the decision of late Justice Hill in Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6, cited with approval in Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 at [42]. Hill J said at 15-16: "The rule that a question of fact is involved in determining whether facts fall within the meaning of a word once that meaning is ascertained, may cause confusion. The confusion comes about because there are actually two related rules, the distinction between which is not always readily apparent. The first of these rules is generally expressed as being that where the facts have been fully found or there is no dispute as to the facts and the question is whether those facts necessarily fall within the description of a word or phrase in a statute, that will be a question of law. This is the sixth proposition enunciated by [Jordan] CJ in the Australian Gas Light Co case. The rationale for this principle is clear enough. If only one meaning is open but a tribunal arrives at a different meaning, underlying the Tribunal's conclusion must be an error of principle, that is to say, an error of law. The second related principle is that where the facts found are capable of falling within or without the description used in the statute, the decision which side of the line they fall on will be a decision of fact and not law. Such a decision will generally involve weight being given to one or other element of the facts and so involve matters of degree."
The respondent referred to the decision of the New South Wales Court of Criminal Appeal in Orr v Cobar Management Pty Ltd (2020) 103 NSW LR 36: [2020] NSWCCA 220 (Orr) and the reference at [109] to "pure questions of law".
In Jain v Dr N Kalokerinos Pty Ltd [2023] NSWCATAP 141, the Appeal Panel drew together the principles applicable determining the scope of an appeal on a question of law. At [74]-[81] the Appeal Panel said: 74 While there is no decision which has addressed the scope of a question of law under s 80(2)(b) of the NCAT Act, courts have addressed the scope of an appeal on a question of law in different legislative contexts. 75 In Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 (Bimson) Beech-Jones CJ at CL heard an appeal under s 56(1)(e) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) which conferred on a prosecutor a right of appeal to the New South Wales Supreme Court against an adverse costs order made by the Local Court in summary proceedings, which are not with respect to an environmental offence, "but only on a ground that involves a question of law alone". His Honour at [38]-[53] relevantly made the following observations: "[38] In any event, the subject matter of the appeal is a question of law and a question of law alone (Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [33] per French CJ) ("Kostas"). The plurality judgment in Kostas at [88] suggests that caution should be exercised in attempting to chart the outer boundaries of such a jurisdiction divorced from the circumstance of the particular case. Their Honours also stated that it is not useful to undertake an analysis which compares and contrasts the formulation in s 56(1) with other phrases such as "appeals on a question of law" or appeals "with respect to a question of law" (cf HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 at [83] ff per Basten JA). [39] Bearing those observations in mind, three related propositions should be noted. The first is that an appeal on a ground that involves a question of law alone does not include a mixed question of fact and law (see R v PL [2009] NSWCCA 256 at [25] per Spigelman J ("PL (No 1)"). This distinction between a question of law alone and a mixed question of law and fact can often be difficult to identify, much less maintain. [40] This leads to the second proposition, namely that, ultimately it is incumbent on the parties contending that a question of law was decided erroneously, to identify the question and to do so in abstract terms. Thus in Williams v R [1986] HCA 88; 161 CLR 278 at 287 ("Williams"), Gibbs CJ stated: "... there is 'a question of law alone' if the question of law can be stated and considered separately from the facts which it may be connected in a given case." (see also 314 per Wilson and Dawson JJ.) [41] If that task is undertaken, then the consequential questions that will arise are whether the lower court or tribunal either answered that question or proceeded on an assumption concerning that answer, whether its answer or assumption was correct or incorrect, and whether that answer or assumption was material to the outcome, in the sense that it could have affected the outcome (see Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 per Mason CJ; Mark Aronson and Matthew Groves Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013, at [4.270])). … [46] The third and related proposition is that to identify an "error" on the part of the Local Court in the exercise of its discretion in sentencing in terms that amount to an error of the kind identified in House v R [1936] HCA 40; 55 CLR 499 at 504 ("House"), does not of itself answer the question posed by s 56(1) of the Review Act as to whether that court answered a question of law alone incorrectly, or otherwise made an assumption as to the existence of a legal principle which was wrong. … [48] Clearly some of the errors in the exercise of a discretion identified in this passage are capable also of being agitated on appeal restricted to a question of law alone. Thus, if it was apparent that the court had acted on a "wrong principle", then the question of law would be whether that principle was wrong or correct and, if wrong, whether the trial judge acted on that principle and whether that materially affected the outcome. [49] The position is less straightforward if it is only demonstrated that the lower court failed to take into account some material consideration, or allowed extraneous or irrelevant material to guide it. In such a case the reviewing court would have to consider whether it could be inferred from that circumstance that the lower court acted on an incorrect principle by a process similar to that undertaken by Bathurst CJ in PL (No 2). [50] The other form of error identified in the passage from House, namely, that based upon the facts a decision is "unreasonable or plainly unjust", … … [53] Consistent with House, a conclusion that the exercise of judicial discretion was unreasonable or plainly unjust, may enable the appellate court to infer that there was error, but it does not necessarily enable the appellate court to infer that the error was one that involved the lower court applying or adopting a wrong legal principle. …" 76 In Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; 96 ATR 875 (Ferella) the New South Wales Court of Appeal held that there was no appeal "on a question of law" within s 119 of the Administrative Decisions Tribunal Act 1997 (NSW) and dismissed the appeal. The main judgment was delivered by White J (with Barrett JA at [1] and Leeming JA at [2] agreeing). Leeming JA at [7] made an additional observation: "[7] … the matters raised by the appellants in their reformulated questions amount in substance to challenges to evaluative fact-finding which on no view could amount to a question of law." 77 In Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 (Haritos) at [110]-[202] the Full Federal Court (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) considered the scope of an appeal "on a question of law" under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Court: (1) noted at [176] that the New South Wales Court of Appeal had found that the right of appeal in s 57 of the Land and Environment Court Act 1979 (NSW) (LEC Act), which confers a right of appeal to the Court of Appeal against an order or decision of the Land and Environment Court in Class 3 proceedings "on a question of law", is not confined to an error of law and it extends to questions of mixed law and fact: Aboriginal Land Council (NSW) v Minister Administering Crown Lands Act [2007] NSWCA 281; (2007) 157 LGERA 18 (ALC) at [8] (Mason P with Tobias JA at [79] agreeing); (2) noted at [198] that the High Court observed in the context of an appeal that was brought pursuant to s 32 of the Compensation Court Act 1984 (NSW) (CC Act) which conferred a right of appeal upon a party aggrieved by an award of the judge of the Compensation Court "in point of law", that when it is necessary to engage in a process of construction of the meaning of a word (or phrase) in a statute, a question of law will be involved but that the question may be a mixed one of fact and law: Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 (Vetter) at [27] (Gleeson CJ, Gummow and Callinan JJ with Hayne J at [107] generally agreeing). (3) found at [192] that the right of appeal in s 44 of the AAT Act does not extend to mere questions of fact, but may extend to mixed questions of fact and law in circumstances where legally erroneous fact finding has occurred. The exclusion of mere questions of fact does not include jurisdictional facts or such facts as it may be necessary for the court to find when considering a claim of denial of procedural fairness. 78 The High Court refused an application for special leave to appeal against the decision in Haritos: Commissioner of Taxation v Haritos [2015] HCATrans 337. 79 In Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Orr) the New South Wales Court of Criminal Appeal considered whether there had been a submission of "any question of law" pursuant to s 5AE(1) of the Criminal Appeal Act 1912 (NSW) for determination. Bathurst CJ and Bell P at [109] (with Johnson J at [128], Garling J at [136] and Lonergan J at [137] agreeing) held: "[109] 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. …" 80 In Commissioner of Police (NSW Police Force) v Adam [2022] NSWSC 789 (Adam) Beech-Jones CJ at CL heard an appeal under s 56(1)(e) of the CAR Act. His Honour held at [18]-[21]: "[18] As for s 56(1), "[a] question of law alone" as distinct from a question of law or a complaint about error of law, is a question that "can be stated and considered separately from the facts with which it may be connected in a given case" (see Williams v The Queen (1986) 161 CLR 278 at 287; [1986] HCA 88 per Gibb CJ at [314] per Wilson and Dawson JJ). [19] Even so, a conclusion of mixed fact and law can be challenged on an appeal restricted to a question of law alone if it can be determined that that conclusion "[p]roceed[ed] from a misdirection of law" (Williams at 287). In R v PL [2009] NSWCCA 256 at [27], Spigelman CJ stated that a contention that a presiding judicial officer erred may involve a question of law alone if a stand alone legal proposition can be identified which was a "distinct and separate step in the reasoning process". [20] In Bimson, Roads and Maritime Services v Damorange Pty Limited [2014] NSWSC 734 at [41], I stated as follows: "If that task [of identifying a question of law in abstract terms] is undertaken, then the consequential questions that will arise are whether the lower court or tribunal either answered that question or proceeded on an assumption concerning that answer, whether its answer or assumption was correct or incorrect, and whether that answer or assumption was material to the outcome, in the sense that it could have affected the outcome..." [21] Leaving aside the approach to materiality that is referred to in this passage, the end result is that an appeal on a question of law alone may raise a question of law, the answer to which is obvious. Further, the appeal will only "involve" that question of law alone if that answer was a "distinct and separate step in the reasoning process" of the court below (PL supra), even accepting that such a step may only be implicit in the lower court's reasoning. Answering that question will only of itself lead to a conclusion that a decision should be set aside if the court either addressed that question incorrectly or proceeded on an assumption as to the answer which was incorrect and it was material to the outcome. If the court did not proceed on a misapprehension as to the law, then, at most, its decision will only be affected by an error or mixed fact of law and no question of law alone will ultimately either arise or be involved in the proceedings (see White v DPP [2021] NSWSC 1629 at [13])." 81 In Hanave at [45] Chen J set out the following principles with respect to a question of law under s 83 of the NCAT Act: "[45] As to the existence of a question of law, some matters are clear. First, a mixed question of fact and law does not fall within the description of "question of law alone" (Attorney General for NSW v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [44]), nor is it a question of law: Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [60]. Secondly, it is insufficient to merely assert that the relevant decision-maker "erred in law" so as to satisfy the limited conferral of jurisdiction: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; 96 ATR 875 at [6] ('Ferella'); Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13] ('Schwartz'). As the defendant submitted, some of the grounds raised in the plaintiff's summons adopted the formula of asserting that the Appeal Panel "erred in law" without actually identifying how that error occurred and why it amounted to a question of law. Thirdly, a matter that is wholly or partly factual is not converted into legal error (or involve a question of law) merely by using the description "erred in law": "no amount of formulary" will transform something into a legal error if it is not: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515, 527; [1990] FCA 689. Fourthly, the grounds of appeal are required to explicitly identify the question of law raised: Ferella at [6] and [22]; Schwartz at [13]; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [26]. Finally, although s 83(1) of the NCAT Act confines an appeal to this Court to an appeal "on a question of law", there is no clear test available to define a question of law (Ferella at [4]) - or a test of universal application: Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389, 394; [1996] HCA 36."
As to the need to identify the grounds of appeal, the Appeal Panel in Jain had earlier said at [69]-[73]: The necessity to identify a question of law in a notice of appeal 69 In Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 (Thomas and Naaz AP) at [58]-[59], the Appeal Panel stated in respect of an appeal under s 80(2)(b) of the NCAT Act: "58 A Notice of Appeal is required to properly identify the questions of law which are the subject matter of the appeal. As the Court of Appeal stated in Ferella v Chief Commissioner of State Revenue (2014) 96 ATR 875; [2014] NSWCA 378 ("Ferella") at [22] in respect of an appeal from the Administrative Decisions Tribunal to the Appeal Panel (per White J, Barrett JA and Leeming JA agreeing): "As the notice of appeal to the Appeal Panel purported to bе ап appeal оп questions of law, it was necessary for the notice of appeal to identify precisely the particular question or questions of law. It was those questions, if there were any, that should have formed the subject matter of the appeal to the Appeal Panel unless leave were sought and obtained for a merits review (TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; 19 ATR 1067 at 1070; В & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481; Соlbу Corporation Pty Ltd v Commissioner of Taxation [2008] FCAFC 10; (2008) 165 FCR 133 at [13]; Osland v Secretary to the Department of Justice (No. 2) [2010] НСА 24; (2010) 241 CLR 320 at 333, [21]; Ное v Manningham City Council [2011] VSC 37 at [4]-[5]; Smalley v Secretary, Department of Health and Ageing [2011] FCA 302 at [10] ff)." 59 It is not enough to simply assert (as the appellant did), that the Tribunal erred in its construction and application of certain provisions of the PTA without also identifying how that purportedly occurred. Further, as Leeming JA stated in Ferella at [6], "it is not possible, merely by the device of asking whether the Tribunal erred in law in doing something or failing to do something, to circumvent the statutory limitation on the scope of the appeal". What is required is that a particular question of law be identified for determination on the appeal." 70 The principles identified in Thomas and Naaz AP at [58]-[59] were cited with approval by the New South Wales Court of Appeal in Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 (Thomas and Naaz CA) at [26] (Leeming JA) (with Meagher JA at [1] and Griffiths AJA at [75] agreeing). 71 The same principles apply on an appeal from the Tribunal to the Supreme Court of New South Wakes under s 83(1) of the NCAT Act with leave on "a question of law": Thomas and Naaz CA at [32] (Leeming JA) (with Meagher JA at [1] and Griffiths AJA at [75] agreeing); Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 (Hanave) at [45] (Chen J). 72 The approach of courts where there is an appeal on a question of law is not to read a notice of appeal narrowly, and to address questions of law that are identified in the notice of appeal as a whole and perhaps also from surrounding circumstances: Fraser v Sperling [2017] VSCA 53 (Fraser) at [56] (Maxwell P, Santamaria and McLeish JJA); McSteen v Architects Registration Board of Victoria [2018] VSCA 96 (McSteen) at [32]-[34] (Maxwell P, Priest and McLeish JJA). 73 In Thomas and Naaz CA the notice of appeal elaborated a large number of bases upon which, so it was said, the Appeal Panel had erred and fell short of squarely identifying a question of law. The Court of Appeal examined the key finding which was the subject of the appeal and found that that there was no error in the finding and that no question of law arose from the finding: at [34]-[58] (Leeming JA) (with Meagher JA at [1] and Griffiths AJA at [75] agreeing).
As will be apparent from Jain at [69] and following, the identification of a question of law can be a complex task, not easily answered by asking whether a legal error was made. Indeed, following the approach set out in Jain at [72], on one view it requires an examination of the whole of the Notice of Appeal and, perhaps, the surrounding circumstance to determine if such a question was properly raised. This appears to be the approach adopted by Leeming JA in Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40: see e.g. [40]-[47], although His Honour also said questions of law need to be properly identified in a notice of appeal.

The relevant legislation, the CMS and the by-laws

The resolutions of the issues raised requires a consideration of the relevant legislation, CMS and by-laws.
In relation to the 1989 CLDA, s 3 provides the following definitions common property means the common property in a strata scheme as this defined in the Strata Schemes (Freehold Development) Act 1973 (NSW) (repealed), (now the Strata Schemes Development Act 2015 (NSW). restricted property includes: (b) common property of which the use is restricted by by-laws in force under the strata scheme of which it forms part. subsidiary scheme means - (a) in relation to a community scheme - a precinct scheme, neighbourhood scheme or strata scheme that is part of the community scheme …
Schedule 3 of the 1989 CLDA provides: 3 Optional matters for management statement (1) A community management statement may include by-laws and other particulars relating to any of the following - (c) details of any restricted property, … (2) This clause does not limit the matters that may be included in a management statement.
Section 3 of the 1989 CLMA contains the following definitions: restricted property means - … (b) common property of which the use is restricted by by-laws in force under the strata scheme of which it forms part. subsidiary scheme means - (a) in relation to a community scheme - a precinct scheme, neighbourhood scheme or strata scheme that is part of the community scheme, or …
Section 54 of the 1989 CLMA provides: 54 Restricted property … (4) A by-law for a subsidiary scheme within a community scheme or a precinct scheme may restrict the use of part of the association property or common property to one or more of the following - (a) the proprietor or proprietors of one or more development lots within the community scheme or precinct scheme, or (b) the proprietor or proprietors of one or more precinct development lots, neighbourhood lots or strata lots within another subsidiary scheme, or (c) the community association, or (d) if the subsidiary scheme is part of a precinct scheme - the precinct association, or (e) a precinct association, neighbourhood association or strata corporation within another subsidiary scheme. … (7) A by-law made for the purposes of this section must include - (a) a description of the property to which it applies, and (b) details of the persons entitled to use the property, and (c) the terms and conditions on which those persons may use the property, and (d) particulars relating to access to the property and the provision and keeping of any key necessary, and (e) particulars of the hours during which the property may be used, and (f) provisions relating to the maintenance of the property, and (g) matters relating to the determination, imposition and collection of levies on those entitled to use the property. (8) A failure to comply with a condition precedent to the making of a by-law restricting the use of association property, or to the amendment or revocation of such a by-law, is not a ground for invalidating the by-law, amendment or revocation more than 2 years after the event.
The relevant provisions of the CMS are clauses 53, 63, 66 and various definitions clause 71.
Clause 53 relevantly provided (at the time SP 69205 was registered): Community Property 53.1 Community Property at Pacific capital Lakes includes the Open Space Area, the Private Accessway and the Security Gate. 53.2 The Community Association must control, manage and maintain the Community Property. … Restricted Subsidiary Property 53.5 Subject to by-law 53.6, several facilities which are (or may be) available for use by all relevant owners and occupiers may be located in Subsidiary Schemes. The facilities may include: (a) a Swimming Pool; (b) a Change Room; (c) a Tennis Court; (d) a Community Hall; (e) a Commercial Parking Area: (f) a Picnic Ground; (g) a Children's Playground; (h) a Subsidiary Open Space Area; (i) a Pond; and (j) Subsidiary Accessways. In this management statement, these facilities are called Restricted Subsidiary Property (Emphasis added). 53.6 The Developer is under no obligation to build, construct or otherwise provide the facilities listed in clause 53.5. 53.7 To ensure that all owners and occupiers can use Restricted Subsidiary Property, the Subsidiary Association for the Subsidiary Schemes created on subdivision of a Community Development Lot must grant the Community Association exclusive use or restricted use (as appropriate) of any of the facilities of the type referred to in this by-law which may be constructed on that Community Development Lot. The mechanisms to achieve this are explained in by-law 66. 53.8 By-laws in part 5 relating to Restricted Subsidiary Property take effect when the Restricted Subsidiary Property referred to in the by-law is created. Restricted Subsidiary Property is created on registration of a Neighbourhood Plan or Strata Plan. See by-law 66 for more information. 53.9 Subject to the Restricted Property By-Laws, the Community Association must control, manage and maintain Restricted Subsidiary Property. It may also make Rules about using Restricted Subsidiary Property. …
In 2013, by-law 53.1 was replaced with the following by-law: 53.1 Community Property at Pacific capital Lakes includes the Open Space Area, the Open Access way and the Security Gate.
Relevantly, at the time Strata Plan 69205 was registered, clause 63 of the CMS provided: Who may use Accessways? 63.1 There are two types of accessways in Pacific Lakes: (a) the Private Accessway in Community Property; and (b) Subsidiary Accessways which form part of Restricted Subsidiary Property. 63.2 The accessway plan in the management statement shows the location of the Private Accessway. 63.3 Subject to this management statement, the owners and occupiers may use Accessways. In particular, by-law 64 deals with the rights of the Community Association to restrict access through the Security Gate into some of Pacific Lakes. Rights and obligations of the Community Association 63.4 The Community Association must control, manage, operate, repair and maintain Accessways. …
Subsequently, clauses 63.1 and 63.2 were repealed (in 2013) and replace with the following: 63.1 There are two types of Accessways in Pacific capital Lakes: (a) the Open Accessway in Community Property; and (b) Subsidiary Accessways which form part of Restricted Subsidiary Property. 63.2 The accessway plan in the management statement shows the location of the Open Accessway.
At the time SP 69205 was registered, clause 66 relevantly provided: Restricted Subsidiary Property Purpose of the by-law 65.1 The purposes of this by-law is: (a) to ensure that each Subsidiary Association has access to Restricted Subsidiary Property once the Subsidiary Schemes are developed; and (b) to make provision for payment for Restricted Subsidiary Property by Subsidiary Associations who have access to the Restricted Subsidiary Property. Creating Restricted Subsidiary Property … 66.3 When a Community Development Lot is subdivided by a Strata Plan, the owner of the Community Development Lot must ensure that the new Owners Corporation grants exclusive use of Restricted Subsidiary Property to the Community Association. 66.4 The Community Association accepts all grants of Restricted Subsidiary Property made under this by-law. 66.5 Subsidiary Associations must grant restricted use or exclusive use (as appropriate) of their Subsidiary Property by by-law. The by-law must: (a) require the Community Association to control, manage, operate and maintain the Restricted Subsidiary Property as if it were Community Property; (b) require the Community Association to control, manage, operate and maintain Subsidiary Accessways as if they were part of the Private Accessways; (c) require the Community Association be responsible for the costs of the Restricted Subsidiary Property according to the Management Act; and (d) allow the Community Association to make agreements with third parties (e.g. the Caretaker) to exercise its rights or functions under the by-law. …
In 2013, clause 66.5 was amended to read: 66.5 Subsidiary Associations must grant restricted use or exclusive use (as appropriate of their Subsidiary Property by by-law. The by-law must: (a) require the Community Association to control, manage, operate and maintain the Restricted Subsidiary Property as if it were Community Property; (b) require the Community Association to control, manage, operate and maintain Subsidiary Accessways as if they were part of the Open Accessways; (c) require the Community Association be responsible for the costs of the Restricted Subsidiary Property according to the Management Act; and (d) allow the Community Association to make agreements with third parties (e.g. the Caretaker) to exercise its rights or functions under the by-law.
Relevant definitions in clause 71.2 of the CMS (as at the time of registration of SP 69205) included: Accessways are Private Accessways and Subsidiary Accessways Commercial Lot is a lot that forms part of the Strata Scheme registered over Community Development Lot 15 Common Property is common property and personal property of an Owners Corporation Community Hall is the community Hall constructed on Community Development Lot 15 that forms part of the community centre shown on the concept plan in this management statement Community Property is Lot 1 in the Community Plan for Pacific Lakes. Open Space Area is that part of Pacific Lakes that does not comprise a Security Gate, a Swimming Pool, a Change Room, a Tennis Court, a Community Hall, a Commercial Parking Area, a Picnic Ground, a Children's Playground, a Pond, Accessways, foot paths (walkways) or other facilities at Pacific Lakes. Private Accessway is a private accessway forming part of Community Property set aside under the Development Act. The location of the Private Accessway is shown on the accessway plan accompanying this management statement. Subsidiary Accessways are accessways forming part of Restricted Subsidiary Property set aside under the Development Act. Subsidiary Association is: … (b) an Owners Corporation Subsidiary Property is: … (b) Common Property in a Strata Scheme.
In 2013, the definition of Private Accessway was deleted. In addition, the following definitions replaced the existing definition set out above: Accessways are the Open Accessway and Subsidiary Accessways. Open Accessway is the open access way forming part of Community Property set aside under the Development Act. The location of the Open Accessway is shown on the accessway plan accompanying this management statement.
I should note at this point that in respect of accessways set aside under Part 5, Access to schemes of the 1989 CLDA, this Part refers to setting aside for "open access" (Division 1) or "private access (Division 2) between part of a parcel in the relevant scheme and a public place (including through another open accessway in the scheme.
In respect of the by-laws of the respondent, the following are relevant.
First are the definitions found in by-law 1.1: common property: (a) common property in the Pacific capital Lakes Commercial (as that term is defined in the Management Act); and (b) personal property of the owners corporation. community hall: has the same meaning given to it under the community management statement. community management statement: the community management statement for Pacific Lakes. Pacific Lakes: the community scheme created on registration of DP270244 Pacific Lakes Commercial: strata plan no. 69205 Restricted common property: has the same meaning given to "Restricted Subsidiary Property" in the community management statement (as appropriate). The restricted common property for Pacific Lakes Commercial includes: (a) the commercial parking area; and (b) the community hall; (c) the swimming pool; (d) the change room; (e) the open space areas outside buildings (as those areas are defined in the community management statement).
Next, By-law 26 provides: Restricted common property 26.1 Grant of restricted use rights and special privilege rights According to by-law 66 of the Community Management Statement, the owners Corporation grants to the community Association: (a) restricted use of restricted common property; (b) a special privilege to control, manage, operate, maintain and replace restricted common property. 26.2 Obligations of the community association The community association must: (a) control, manage, operate, maintain and replace restricted common property; (b) have consent from the owners corporation before it replaces restricted common property; (c) pay its costs under this by-law as if restricted common property is community Association property; (d) levy contributions for its costs under this by-law on each of its members according to the Community Land Management Act 1989 (NSW); (e) repair damage to restricted common property caused by exercising rights under this by-law; and (f) reimburse the owners Corporation on demand for costs incurred by the owners Corporation for ensuring the restricted common property according to the Management Act. 26.3 Access to restricted common property The community association may gain access to restricted common property at any reasonable time. .. 26.5 Indemnity The community association indemnifies the owners corporation against all claims and liability caused by exercising its rights under this by-law.
As noted in the Tribunal's reasons, by-law 26 was purportedly amended by resolutions passed 8 November 2003. As necessary, I will return to this issue below.

Grounds of appeal

It is convenient to deal with the grounds raised and the submissions of the parties by reference to what the appellant identified in its oral submissions as three questions of law. I will do so under the following headings: 1. Orders 3, 13, 15 and 19 - Grounds 1, 3, 5 and 10; 2. Jurisdiction of the Tribunal to determine claims under ss 80 and 82 in proceedings referral from an adjudicator; and 3. Costs

Orders 3, 13, 15 and 19 - Grounds 1, 3, 5 and 10

These grounds relate to the question of whether, on the proper construction of the 1989 CLMA, 1989 Management Act, the CMS and the by-laws, the appellant was required to perform the works specified in orders 3, 13 and 15 and pay charges in respect of water service and sewer services in respect of metres 4046557, 8049286 and 8049122.
This in turn, required a consideration of what common property of the respondent had become Restricted Subsidiary Property regulated by the CMS pursuant to by-law 26.

Order 3 - Grounds 1 and 3

The errors identified by the appellant were that stated in grounds 1 and 3, being: 1. the Tribunal's conclusion that the Decking and External Building Elements comprises part of the "Community Hall" and thus comprises "Restricted Subsidiary Property" as that term is defined in clause 17.2 of the CMS; and 2. the Tribunal's conclusion that the Decking also comprises "Restricted Subsidiary Property" by virtue of being Subsidiary Accessway within the meaning of CMS 53.5 (j). Submissions in respect of Order 3
The appellant says that the proper construction of the CMS and by-laws raises a question of law. Also, in its written submissions in chief at [16] and following, the appellant submitted that whether facts found fall within a statutory provision is also a question of law. In this regard, reliance was placed on the decision in Lombard at [23(4) and (5)] where the Appeal Panel said: Whether facts as found are capable of falling within a statutory provision, must necessarily fall within the statutory provision or must necessarily for outside the statutory provisions are questions of law
As to why ground 1 (which relates to Decking and External Building elements comprising part of the Community Hall and thus comprising Restricted Subsidiary Property as that term is defined in clause 17.2 of the CMS) did not raise a question of law, the respondent said in its written submissions at para 46: … the Tribunal found as a matter of fact that the location of the Decking was "capable of falling within or without the description" of Community Hall. The finding as to which side of the line the Decking and External Building elements for - part of Community Hall or not - is a finding of fact and not a holding of law. It was and remains a question of fact what parts of the community centre comprise the community hall.
Similar submissions concerning ground 3 were made by the respondent in its written submissions at paras 67 and following, about the finding that the Decking is a physical element which comprises part of the "Subsidiary Accessway" (being access to the Community Hall). Here, the respondent says at para 70: Ground 3 poses the question of whether the facts found are capable of falling within or without the description: "Subsidiary Accessway". Integral to that question is the proper construction of the CMS defined term: "Subsidiary Accessway". However, the question posed does not ask whether the Tribunal misdirected itself as the proper construction (sic) of the term "Subsidiary Accessway". The question posed asks whether the finding that the decking fell within that description was a correct factual finding. The ground thus raises a question of fact or alternatively a mixed question of fact and law.
In oral submissions, the respondent said that the Tribunal found the decking fell within the definition of Community Hall. This definition was based on use by owners or occupiers. Relying on Sharp, the respondent said it was a question of fact if the particular element fell within the description. Therefore it was either a question of fact or a mixed question of fact and law. The respondent also relied on the alternative finding of the Tribunal at JD [169] that the decking was part of the Subsidiary Accessway.
In its written submissions in chief, at [41] and following, the appellant had said the Community Hall was defined as part of the community centre. Exhibit 4 (MFI 1) shows the Community Hall being the building marked "Function Hall" on the exhibit. In this regard the Tribunal found the decking surrounded the Community Hall.
In its written submissions in reply, the appellant says: 16. The fully found facts were, relevantly, their respective locations of the Decking and Function Hall, marked in pink and orange respectively on the Exhibit 4 floorplan, and the means of access between the Function Hall and the Decking … The respondent apparently accepts that "the location of the Decking", and by inference the location of the Function Hall, was the critical factual finding… So much is common ground. 17. The Decking is outside the boundaries of the Function Hall. While the western extremity of the Decking abuts the Function Hall at its rear fire exit door …, The decking primarily partly surrounds commercial Lots 1 and 2 and entirely surrounds commercial Lots 3-4. There were no findings that the decking played any functional role in the structure or use of the Function All, other than to provide access through its rear fire exit door. 18. Consistently with the 5th principle of construction of exclusive by-laws enunciated by McColl JA in Tait … , the definition of "Community Hall" in CMS 71.2 should be interpreted objectively by what its words convey to a reasonable person. 19. Applying that test, the fully found facts necessarily conveyed to a reasonable person that the boundaries of the community hall, recognising that the Function Hall depicted on the floor plan is the "community hall", are the boundaries of the area marked in pink, and do not also extend to encompass the area marked in orange. Conversely, those fully found facts are not capable of conveying to a reasonable person that the community hall includes the entirety of the Decking merely because the rear fire exit doors of the Function Hall can be used to access, and thus involve the necessary use of the Decking (contrary to the finding of the Tribunal below at R[167]. 20. Once this is recognised, the Respondent's submission at RS [38], [46] and [47] (and the related submissions at RS [52]-[53]) that ground 1 involves an impermissible attack on a factual finding falls away.
As to the respondent's submissions concerning the alternative finding of Subsidiary Accessway, the appellant says it is challenging the Tribunal's finding at JD [169] that the Decking is a Subsidiary Accessway within the meaning of that term in CMS 71.2. In this regard, the appellant says the Tribunal misconstrued the meaning of "Subsidiary Accessway" and the expression restricted common property as defined in by-law 1.1 to include Subsidiary Accessways. Whether there was such a misconstruction, the appellant contends, is a question of law (Appellant's reply submissions (AR) at para 25).
As to why the Tribunal erred in law, the appellant first set out an overview of the applicable legislation. The following points were raised: 1. the 1996 Management Act and the 1989 CLMA applies to resolution of this dispute, the 1996 Management Act being in force when the owners corporation was registered. The date of registration of strata plan SP 69205 was 6 November 2022. 2. Section 54(4) permitted a by-law for a subsidiary scheme, of which the respondent is one, may restrict the use of part of the association property or common property to, relevantly, the community association. 3. Section 139 of the 1996 Management Act provided that a community management statement prevails to the extent of any inconsistency with this a by-law for a strata scheme that is also part of the community scheme. 4. In construing the community management statement and the by-laws, the principles set in The Owners of Strata Plan No 3397 v Tate (2007) 70 NSWLR 344; [2007] NSWCA 207 (Tate), particularly at [71] are applicable.
Upon registration of SP 69205, by-law 26.1 granted to the appellant: (a) restricted use of restricted common property; and (b) a special privilege to control, manage, operate, maintain and replace restricted common property.
By-law 26.2 set out the obligations of the community association in connection with control, management repairs and other matters including the levying of contributions for its costs.
In passing, I note an amendment to that by-law (by-law 26.3), passed at a meeting on 8 November 2003, concerning the equal sharing of costs by the appellant and respondent, was found to be "ineffective to impose upon the owners corporation and the association equal liability for the maintenance, repair and replacement of the decking": JD [179].
As to the CMS, the appellant: 1. notes there was a Concept Plan attached to it at a time when the strata scheme was not yet registered and the land to which the scheme attached was a development lot known as "Lot 15"; 2. says the CMS "does not of itself create Restricted Subsidiary Property", but rather provides a mechanism for the future creation of such property on registering a subdivision. Reference is made to the CMS clause 53. In this regard the appellant says clause 53.7 of the CMS requires that at the time of subdivision of a community development lot, the subsidiary association must grant either exclusive use or restricted use (as appropriate) of any facilities of the type referred to in clause 53.5. In this regard the appellant says the mechanism for grant is set out in clause 66 of the CMS.
The appellant says that no part of the common property of SP 69205 was a Subsidiary Accessway as defined in clause 71.2 of the CMS "irrespective of the nature or extent of the use made of it by an owners and occupiers of DP 270244".
The appellant also says: Critically, the CLD Act did not provide for access ways to be set aside in strata schemes registered as a subdivision of a community development lot. Consequently there are no Subsidiary Accessways in SP 69205.
In its submissions in reply, the appellant continues: Whether or not an accessway has been set aside under the CLD Act depends on compliance with the statutory requirements of Part 5 not on who controls access.
The appellant then says "the CLD Act had a procedure for setting aside access ways, which was limited to access ways in neighbourhood schemes, not to strata schemes."
Finally, the appellant said, even if the Decking was capable of being a Subsidiary Accessway, it was not made Restricted Subsidiary Property in accordance with the process required by clause 66.3 of the CMS. On this aspect the appellant said: "That is because the restricted common property, of which strata by-law 26.1 granted DP 270244 restricted use, did not include Subsidiary Accessways … One might readily infer that was because there were no Subsidiary Accessways in SP 69205."
Here, the appellant referred back to the definition of restricted common property in by-law 1.1, which specifies particular facilities and spaces which were included in the common property of the respondent.
Consequently, the Tribunal was in error in concluding to the contrary.
In reply to the issue concerning whether the decking was a Subsidiary Accessway, and therefore Restricted Subsidiary Property, the respondent made the following submissions: 1. The effect of the challenge by the appellant relates to the factual finding that the Decking is a physical element which comprises part of a subsidiary accessway, available for all owners and occupiers to gain access to the Community Hall. As to what physical elements constitute a Subsidiary Accessway again is a question of fact. 2. The question posed by ground 3 raises the matter of whether the facts as found are capable of falling within or without the description of "Subsidiary Accessway". The question posed "does not ask whether the Tribunal misdirected itself as to the proper construction of the term "Subsidiary Accessway"." Therefore the challenge is one on a question of fact or, alternatively, a mix question of fact and law.
As to the meaning of Subsidiary Accessway, the respondent said that the definition of restricted common property and by-law 1.1 was an inclusive definition, referring back to the definition of Restricted Subsidiary Property in in clause 53.5 of the CMS.
As to clause 53.5, the respondent says that the appellant's submissions do not have regard to the chapeau to that clause. As such, restricted common property in by-law 1.1 includes Subsidiary Accessways which form part of the definition of Restricted Subsidiary Property in clause 53.5 of the CMS.
As to the word "Accessways", the respondent says in its written submissions in reply: 1. "Any accessway forming part of Restricted Subsidiary Property is a Subsidiary Accessways": at [73]; and 2. "Accessways" is not a term defined in the CMS. "However, the appellant must control, manage, operate and repair all Accessways" pursuant to clause 63.4 of the CMS: at [75].
As will be apparent from the definitions in clause 71, there is a definition of "Accessways" in the CMS. However, there is a degree of circularity in the definitions within the CMS. I will return to this matter below.
As to the grant under by-law 26, the respondent says that, notwithstanding the use of the word "exclusive use" in clause 66.3 of the CMS, the obligation on the owners corporation arises from clause 53.7 which refers to either exclusive use or restricted use. In doing so, the respondent submits clause 66.3 of the CMS "can be of no effect". Here, reliance is placed on the decision of Noon v The Owners - Strata Plan No. 22422 [2014] NSWSC 1260 and the reasons of the Tribunal at JD [270].
As such, by-law 26.1 complies with clauses 53.7 and 66.5 of the CMS.
Finally, if the decking and surrounds were not accessways to the facilities in question (namely the Community Hall etc located in SP 69205), that would lead to an absurd result as those entitled to access the facilities under the CMS would not be able to do so. In this regard, the respondent notes that Part 5 of the 1989 CLDA "does not exclude a CMS from providing an access way in any part of the community whether or not a strata scheme". Here, the respondent refers to the definition of "Community Scheme" in s 3(1)(e) of the 1989 CLDA, noting that the definition of a "Subsidiary Scheme" in that Act includes a "strata scheme".
In passing, I note the challenge to the validity of by-law 26 on the basis it was not an exclusive use by-law was not raised in the context of Order 3. Grounds 1 and 3 related to whether the Decking fell within the definition of Restricted Subsidiary Property and/or Community Hall or Restricted Accessway. The identified errors in the grounds of appeal do not, in terms, raise such a question of law. The invalidity issue was only raised in connection with the appeal ground 5 which related to orders 13 and 15 (which concerns the gardens and landscaping).
Consequently, I will deal with this challenge as part of considering ground 5.
This failure highlights the problem in a notice of appeal limited to a question of law that does not precisely identify the questions to be considered. Despite this fact, the parties have proceeded on the basis that the issue of invalidity under s 54 does raise a question of law (at least in the context of orders 13 and 15 where the "error" is identified) and also have addressed this issue indirectly in the submissions made concerning Order 3. Decision in respect of Order 3
There are two matters to resolve in connection with Order 3 in respect of the identified grounds in the Notice of Appeal: 1. Whether the appellant has raised a question of law. 2. Whether the Tribunal made the identified errors.
The Tribunal's reasons for concluding the decking was part of the Community Hall or, alternatively, a "subsidiary accessway" are found in JD [164]-[169]. There the Tribunal said: 164 In my opinion, the Decking and the External Building Elements comprise part of the building comprising the Community Centre which in turn contains the Community Hall. 165 The object of the Community Land Development Act 1989 as set out in in section 4 (1) (a) is to facilitate the subdivision of land into parcels for separate development or disposition, "with an interest in associated land in the nature of common or shared property". Section 54 (4) of the CLMA permits the applicant to grant the respondent the "use" of part of its common property. Taking into account the purposive construction of these provisions as authorised by section 33 of the Interpretation Act, in my opinion the concepts of "sharing" the associated property and the common "use" of the property imply effective use - such that it is not open to the Community Association to eschew the sharing and use of a building element of associated property which is not convenient. 166 In cross examination Mr Went gave evidence that the rear doors of the Community Hall "…are fire exits" to the Community Hall and that "You can physically enter the hall from the rear." The fire exits lead directly onto the Decking. Such entrance necessarily involves use of the Decking. This necessary use of the Decking, in my opinion, confirms that the Decking comprises part of the Community Hall. 167 The above finding, of itself, provides, in my opinion, a sufficient basis for concluding that the Decking comprises restricted subsidiary property as the respondent concedes that the Hall comprises Restricted Subsidiary Property. 168 Further, or in the alternative, in my opinion, the Decking also comprises Restricted Subsidiary Property by virtue of it being "Subsidiary Accessway" within the meaning of CMS 53.5 (j) and By-law 1.1 of the Strata Scheme. 169 CMS 53.5 (j) states that "several facilities which are (or may be) available for use by all owners and occupiers may be located in Subsidiary Schemes (and) may subsidiary accessways". By-law 1.1 of the Strata Scheme states that "Restricted common property has the same meaning given to "Restricted Subsidiary Property" in the Community Management Statement (as appropriate)." The Decking is available for use by all owners and occupiers of the Community Scheme to gain access to the Community Hall. On this basis, the Decking also comprises a Subsidiary Accessway which is also Restricted Subsidiary Property.
The appellant says the facts found by the Tribunal within the above paragraphs do not fall within the definition of Community Hall.
In my view, this claim raises a question of law: see Sharp at 15-16 above. It involves interpreting what is meant by the expression "Community Hall".
The meaning of Community Hall involves construing the text of the CMS.
Notwithstanding the CMS came into effect before any community hall was built in the community scheme, the definition of "Community Hall" in clause 71.2 of the CMS contemplated that: 1. a hall was to be built on the Community Development Lot 15, which became Strata Plan 69205; and 2. the "Community Hall" as defined was to be the structure constituting the community hall that was constructed (emphasis added) on Community Development Lot 15.
The definition makes clear that the Community Hall "forms part of the community centre shown on the concept plan". However, it is not the community centre, noting that "community centre" does not appear to be a term defined in the CMS, other than on the concept plan attached to the CMS which refers to a "Proposed Community Centre".
The Tribunal found ""the Decking and the External Building Elements comprise part of the building comprising the Community Centre which in turn contains the Community Hall". Relying on the fact that fire doors from the hall discharged onto the Decking and that the use of the hall necessarily required using the Decking, the Tribunal also concluded that the "Decking comprises part of the Community Hall".
As to the first aspect, namely the finding that the decking comprises part of the community centre which contains the Community Hall, it is not a finding that the Decking was part of the Community Hall. As to the finding there may be a need for access to what is constructed as a hall, this does not mean that the access path is within the definition of "Community Hall".
Rather, the "Community Hall" is what was constructed (emphasis added) as a community hall as contemplated by the CMS.
The Tribunal's findings that the Decking was part of the community centre, and/or necessary to gain access do not, in my view, establish that the Decking fell within the definition of "Community Hall" contained in the CMS, or that it was part of what was constructed as the Community Hall. Rather, the findings support the view that the Decking was: 1. separate to the structure constructed as the Community Hall; 2. necessary for access to the Community Hall; and 3. part of the community centre in the strata scheme.
It follows that the appellant has established error in respect of this question.
Next, the appellant says that the Decking does not fall within the definition of Subsidiary Accessway and therefore does not form part of the Restricted Subsidiary Property for the purpose of by-law 26.
Again, in my view, this raises a question of law being what is meant by the expression "Subsidiary Accessway".
Subsidiary Accessway is not a term defined in the 1989 CLDA or the 1989 CLMA.
The only accessways defined in the 1989 CLDA are found in Part 5, referred to above. Part 5 provides for two types of accessway, "Open access ways" and "Private access ways". Open access ways and Private access ways are set aside under the CLDA in the manner provided by Part 5. Each of these is an access way that connects a parcel being a "community property", "precinct property" or "neighbourhood property" parcel (as the case may be) with a public place or, in the case of a Private access way to an Open access way. For completeness I should note that the legislation contemplates particular accessways under this Part may interconnect for the purpose of providing access.
In the present case, it is common ground that by-law 26 was made pursuant to s 54 of the 1989 CLMA. In respect of a grant under by-law 26: 1. restricted common property, referred to in the by-laws, is defined by by-law 1.1. It has the same meaning as Restricted Subsidiary Property found in the CMS; 2. restricted common property includes the particular facilities and spaces specified in clause 1.1 of the by-laws; and 3. Restricted Subsidiary Property in the CMS includes Subsidiary Accessways.
Hence, what is meant by the expression Subsidiary Accessways is to be determined by reference to the definitions found in the CMS.
Subsidiary Accessways are "accessways forming part of Restricted Subsidiary Property set aside under the [1989 CLDA]": see definition clause 71.2.
Accessways in the CMS were, at the time by-law 26 was passed, defined as "Private Accessways and Subsidiary Accessways". While the definition changed in 2013, in that "Private Accessways" was changed to "Open Accessways", this change is not presently relevant. However what is relevant from the definition of "Accessways" is that no assistance is provided by that definition in interpreting what is meant by the expression "Subsidiary Accessways". Rather, the definition of "Subsidiary Accessways" directs the reader back to the words "accessways forming part of Restricted Subsidiary Property set aside under the Development Act" found in the definition in clause 71.2.
The meaning of "Subsidiary Accessways" must be construed in the context of the CMS as a whole.
The parties agree that the principles in Tate at [71] apply to that interpretive process. There, McColl JA said: 71 The following propositions emerge from the foregoing discussion: 1. By-laws are the "series of enactments" by which the proprietors in a body corporate administer their affairs; they do not deal with commercial rights, but the governance of the strata scheme: Bailey; 2. By-laws have a public purpose which goes beyond their function of facilitating the internal administration of a body corporate; cp, Parkin, Lion Nathan; 3. Exclusive use by-laws may be inspected by third persons interested in acquiring an interest in a strata scheme, whether, for example, by acquiring units, or by lending money to a lot proprietor; such persons would ordinarily have no access to the circumstances surrounding their making; their meaning should be understood from their statutory context and language: NRMA; Lion Nathan 4. By-laws may be characterised as either delegated legislation or statutory contacts: Dainford ; Re Taylor ; Bailey ; North Wind ; Sons of Gwalia; 5. Whichever be the appropriate characterisation, exclusive use by-laws should be interpreted objectively by what they would convey to a reasonable person: Lion Nathan; 6. In interpreting exclusive use by-laws the Court should take into account their constitutional function in the strata scheme in regulating the rights and liabilities of lot proprietors inter se: Parkin ; Lion Nathan . 7. Unlike the articles of a company, there does not appear to be a strong argument for saying exclusive use by-laws should be interpreted as a business document, with the intention that they be given business efficacy: cf NRMA (at [75]). That does not mean that an exclusive use by-law may not have a commercial purpose, and be interpreted in accordance with the principles expounded in cases such as Antaios Cia. Naviera S.A. but due regard must be paid to the statutory context in so doing; 8. An exclusive use by-law should be construed so that it is consistent with its statutory context; a court may depart from such a construction if departure from the statutory scheme is authorised by the governing statute and if the intention to do so appears plainly from the terms of the by-law: Re Taylor; 9. Caution should be exercised in going beyond the language of the by-law and its statutory context to ascertain its meaning; a tight rein should be kept on having recourse to surrounding circumstances: Lion Nathan.
Applying these principles to the present case, it seems to me the expression "Subsidiary Accessways", which is defined to mean "accessways forming part of Restricted Subsidiary Property set aside under the Development Act", should be given a meaning applicable the context in which it appears.
As to the expression "set aside under the development Act" found in the definition of Subsidiary Accessways, it appears common ground that, insofar as Part 5 of the 1989 CLDA does not apply, restricted property (as that term is defined in the 1989 CLDA) may only be created by a by-law made under s 54 of the 1989 CLMA. In this regard: 1. restricted property in the 1989 CLDA is defined as "common property of which the use is restricted by by-laws in force under the strata scheme of which it forms part"; and 2. Schedule 3 clause 3(1)(c) of the 1989 CLDA permits management statements to include by-laws related to restricted property.
As to the first point, none of the parties have pointed to any other legislative power to make such a by-law.
In circumstances where the expression "Subsidiary Accessways" is used separately to the expressions "Open Accessways" or "Private Accessways" and is property included in the definition of "Restricted Subsidiary Property" in the CMS, it seems to me the only reasonable construction of the expression "set aside under the Development Act" is set aside by a by-law made under s 54 of the 1989 CLMA, the management of which may be regulated by the CMS as permitted by Schedule 3 clause 3 of the 1989 CLDA. This construction gives effect to the expression "set aside" in circumstances where there is no ambiguity as to which power might apply for the purpose of creating and managing Restricted Subsidiary Property.
Next, in the context of the Community Land legislation, this community scheme and the CMS, it seems to me that a Subsidiary Accessway is referring to an accessway that is not otherwise an Open access way or a Private access way within the meaning of Part 5 of the 1989 CLDA. That is, a Subsidiary Accessway is not an accessway comprising community property, precinct property or neighbourhood property, to which Part 5 refers. Rather, in the case of a strata scheme, it is part of its "common property" (as that term is defined in the 1989 CLDA) that may be used for the purpose of access and set aside as "restricted property" (as that term is defined in the 1989 CLDA).
This view is supported by the fact that the CMS has, from time to time, specifically referred to Open Accessways and Private Accessways, being accessways separate to Subsidiary Accessways.
Further, I note it was not suggested that any part of SP 69205 was set aside in the community scheme as part of community property in a community property plan. In any event, the definition of community development lot makes clear it does not include "land that has become subject to a subsidiary scheme", of which SP 69205 is one. Hence, common property of the respondent could not be community property.
It follows that a Subsidiary Accessway is not one created under Part 5 of the 1989 CLDA. Rather, the mechanism of creating rights over such accessways is pursuant to s 54 of the 1989 CLMA. In the case of the respondent, this is by by-law created under s 54(4).
Next, is the question of what is meant by the expression "accessway" used in the definition of Subsidiary Accessway in clause 71.2. This definition refers to a small "a" accessways. These "accessways" are not defined in the CMS. Only big "A" Accessways are defined.
The expression "accessway" should be given its ordinary English meaning. The online Collins Dictionary defines accessway as: a path, route, etc., that provides access to a specific destination or property, as to a public beach or state park See (Collins Dictionary, online ed, accessed 10 September 2024)
Such an accessway may provide access to open space, or buildings and facilities. It may also provide access to Open Accessways or Private Accessways. As with accessways to which Part 5 applies, they may be interlinked throughout the relevant subsidiary scheme.
However, accessways are not limited to accessways of a type to which Part 5. On this point, there are no words of limitation in the CMS to suggest accessways, other than those under Part 5, may only be created to connect, for example, a "community parcel and a public place": see 1989 CMLD s 41(1). This is unremarkable in the sense that a community scheme does, by its nature, contemplate sharing facilities: see s 4(1) of the 1989 CLDA.
A such, there may be common property accessways only available to those in the strata scheme, or they may be restricted in accordance with a by-law made under s 54(4) of the 1989 CLMA for the purpose of the CMS and thereby available to everyone in the community.
The above analysis is supported by clause 53.5 and 53.7 which defines Restricted Subsidiary Property broadly and imposes obligations upon the respondent "to ensure all owners and occupiers can use Restricted Subsidiary Property". This must be a reference to owners and occupiers in the community scheme who might wish to use accessways to pass between particular facilities and areas set aside for the community. These obligations include a mandate that the respondent "must grant the Community Association exclusive use or restricted use (as appropriate of any of the facilities of the type referred to in this by-law which may be constructed on that Community Development Lot" (emphasis added): see clause 53.7 of the CMS.
In the present case, the Decking constitutes an accessway to the Community Hall, at least in connection with the fire escape, as found by the Tribunal in the January decision at [169]. Arguably, it also provides access to other areas of Subsidiary Restricted Property of the respondent including the community centre facilities.
Whether or not this is correct, the only question of law is whether, on the facts as found by the Tribunal, on the proper construction of Subsidiary Accessways, the Decking fell within this definition.
In my view, it does.
Accordingly, the claim that the Decking does not fall within the definition of Subsidiary Accessways fails. Other matters raised in connection with order 3
As will be apparent from the submissions above, the appellant appears to raise two further matters in respect of Order 3. These are: 1. whether by-law 26 in fact was a grant in respect of the Subsidiary Accessways (no grant issue); and 2. whether the grant was effective as it was not a grant of exclusive use required by clause 66.3 (exclusive use issue).
Paragraph 79 of the appellant's submissions in chief, which appear to capture the above issues, says: Secondly, even if the Decking was capable of being a Subsidiary Accessway, it was not made Restricted Subsidiary Property in accordance with the process required by CMS 66.3, namely by the grant of exclusive use by a by-law made under CLM Act, s 54(4) by SP 69205 and in accordance with CMS by-laws 53.7, 53.8 and 66.3. That is because the restricted common property of which strata by-law 26.1 granted DP 270244 restricted use did not include Subsidiary Accessways (para 53 above). One might readily infer that was because there was subsidiary Accessways in SP 69205.
Paragraph 53 of those submissions sets out the definition of restricted common property found in by-law 1.1.
No application was made to amend the Further Amended Notice of Appeal to include these issues or identify relevant questions of law as required by s 80(2)(b) and the authorities to which I have referred above.
In these circumstances, in my view these matters cannot be pursued in respect of the challenge to Order 3 and the grounds identified, namely ground 1 and 3.
In case I am wrong in this conclusion, I will deal with the no grant issue below. The exclusive use issue is dealt with in connection with appeal ground 5 which relates to Orders 13 and 15.
The contention in respect of the no grant issue is that by-law 26 was ineffective to create Subsidiary Accessways as Subsidiary Restricted Property under clause 66.3 of the CMS because the definition of restricted common property, by which by-law 26.1 granted to the association restricted use of the defined property, did not include Subsidiary Accessways.
The contention appears to relate to the fact that the grant made was in respect of restricted common property which the by-laws defined inclusively. As I have explained above, the inclusive definition means that a Subsidiary Accessway falls within the definition of Restricted Subsidiary Property which, in turn, forms part of restricted common property within the meaning of by-law 1.1.
The issue posed is, by reference to the by-law 26.1 and the CMS, what common property of the respondent was the subject of the grant made.
In my view, the answer to this question is that all common property of the respondent that might fit within the definition of Restricted Subsidiary Property was the subject of the grant under by-law 26.1.
My reasons are as follows: 1. The strata scheme constituted by SP 69205 was a subdivision of Lot 15 in the original community plan. Lot 15 was defined as the Commercial Lot in the CMS. Otherwise, what might be described as "community facilities" were to be constructed on that site, including the Community Hall, a Swimming Pool (as defined in clause 71.2 of the CMS) and other facilities are set out in the concept plan attached to the CMS. 2. What is defined as Restricted Subsidiary Property are facilities, accessways or spaces of a type that might be used by owners and occupiers within the community association. 3. The subdivision contemplated by the CMS did not include any private residence which might be created as separate Lots in the strata scheme. When subdivided by the strata scheme, four commercial lots were created. There were no private Lots for residential purposes. 4. Clause 53.7 of the CMS required the respondent "to ensure that all owners and occupiers can use Restricted Subsidiary Property" and "must grant to the [appellant] exclusive use or restricted use (as appropriate) of any of the facilities of the type referred to in this by-law which may be constructed on [Lot 15]" (emphasis added). The mechanism for doing so was clause 66 of the CMS. Whether this mechanism was effective because of the expression "exclusive use" found in clause 66.3 will be dealt with when considering the exclusive use issue in the context of ground 5. 5. Suffice to say, clause 53.7 of the CMS contemplated a grant of all property falling within the definition of Restricted Subsidiary Property (including any facilities that may be constructed on Lot 15) so it could be made available to "all owners and occupiers" for their use. 6. There can be no doubt that the grant under clause 26.1 sought to give effect to these obligations. The identified facilities, that might be constructed, were clearly of a type to be made available for use by owners and occupiers within the community association, not solely for the purpose of the owners of the particular commercial lots which were to be constructed. 7. In circumstances where common property of the respondent (other than that which constituted support or infrastructure in respect of the buildings constituting Lot property) was property that could fit into the definition of Restricted Subsidiary Property and thereby made available to owners and occupiers within the community association, it is hardly surprising that the grant in respect of the use of this common property was made by using an inclusive definition. In this way, all of the common property which fitted within the specified property in the definition of Restricted Subsidiary Property would be included in the grant.
It follows that I would have dismissed this challenge if an appropriate question of law had been identified.
Having regard to the above, the challenge to Order 3 fails.

Order 13 and 15 - Ground 5

The errors of the Tribunal identified by the appellant were the conclusions that: 1. by-law 26 was effective to enable the respondent to grant Restricted Subsidiary Property rights to the appellant on items that are not included in clause 53.5 of the CMS; and 2. accordingly, the grant of restricted use to the appellant of restricted common property in the CMS comprising the open space area outside buildings in Pacific Lake Commercial (as those areas are defined in the CMS) was effective.
As to order 13, which relates to repairing and replacing (as necessary) the missing garden edging and conducting to the Standard the Remediation Works, the Tribunal found at JD [302] that the garden edges constituted Subsidiary Open Space area included within the definition of Restricted Subsidiary Property, including for the reasons expressed in relation to the external lighting system as to why that electrical lighting system was in an open space area.
As to the external lighting system, the Tribunal said at JD [298]-[299]: 298 For the reasons explained in my consideration of the "Inconsistency Issue," I have found that the definition of Restricted Common Property in strata by-law 1.1 was sufficiently specific to identify the open space areas which were the subject of the grant in by-law 26. This includes the area on the Concept Plan identified as "Car Parking" (which itself crosses the right of way in favour of Lot 16) and the areas denoted by reference to the legend in the concept plan as "5 min parking, all day parking, disabled parking and 2 hour parking", as well as the open areas which extend from outside the boundary of the areas so marked for parking, outside and around buildings shown on the concept plan and the swimming pool to the boundaries of the Strata Scheme. 299 I am satisfied that to the extent that the external lighting systems are not within the areas denoted on the concept plan for car parking, that they are within this open space area and that the respondent has responsibility for the maintenance and repair. An order will issue to this effect.
What was described as the "Inconsistency Issue" was dealt with by the Tribunal at JD [260]-[275]. Having analysed Part 5 Division 4 of the 1996 Management Act, which related to special provisions for by-laws conferring certain rights or privileges upon lot owners in a strata scheme, the Tribunal concluded: 274 Accordingly, given that Part 5 Division 4 of the Strata Schemes Management Act 1996 was not available to provide the applicant with power to make an exclusive use by-law in favour of the respondent, and taking into account the comments of Darke J in Noon at [49]-[55] , it seems to me that the better view is that strata by-law 26 was effective to enable the Owners Corporation to grant Restricted Subsidiary Property rights to the Community Association on items that are not been included in CMS 53.5. 275 Accordingly I find that the grant by the applicant of restricted use to the Community Association of "the restricted common property in the CMS comprising the open space area outside buildings in Pacific Lakes Commercial (as those areas are defined in the Community Management Statement) was effective. However, there are further aspects of the respondent's submissions which need to be considered.
The Tribunal then said at [276]-[281], when considering what were open spaces to which by-law 26 applied: 276 The respondent submitted that even if the grant has legal effect, the definition of Open Space Area in clause 71 of the CMS does not define any area as being an open space area. On this basis strata by-law 26 was "ineffective in making any open space area in the Strata Scheme Restricted Subsidiary Property." I do not accept this submission. 277 As at 6 November 2002 section 54 of the CLMA provided that a by-law restricting the use of part of the association's property must include a description of the property to which it applies. This is the onus which such a strata by-law must meet. By-law 26 included a description of the subject property by reference to the definition of restricted common property in strata by-law 1.1. This definition was: "The open space areas outside buildings in Pacific Lakes Commercial (as those areas are defined in the Community Management Statement). 278 In my opinion, having regard to the definition of "Open Space Area" in Clause 71.2 of the CMS, the definition of Restricted Common Property in strata by-law 1.1 is sufficiently specific to identify the subject open space areas which were the subject of the grant in by-law 26. This is because the CMS 71.2 definition effectively defines the open space area in Pacific Lakes Commercial as that part of Pacific Lakes Commercial that does not comprise the items of Restricted Subsidiary Property explicitly identified in CMS 53.5 plus (not including) "accessways, footpaths (walkways) or other facilities at Pacific Lakes. 279 The fact that the CMS 71.2 definition also refers to other facilities which are not located within Pacific Lakes Commercial as also being excluded from the definition ,does not detract from the validity of the definition, insofar as it relates to Pacific Lakes Commercial. 280 Further, within Clause 53.5 one of the facilities which are, or may be available for use by all owners and occupiers, and so comprise Restricted Subsidiary Property is a "Subsidiary Open Space Area". There is no definition of "Subsidiary Open Space Area" in the CMS. However, given that the phrase "Open Space Area" is within the phrase "Subsidiary Open Space Area" I construe the definition of "Open Space Area" in CMS 71.2 as applying , in this case, to the subject subsidiary association, namely, "Pacific Lakes Commercial". 281 The second submission of the respondent was that if strata by-law 26 is considered to be sufficiently specific in respect to open space areas, such open space areas cannot include any of the carve-outs in the definition of Open Space Areas in by-law 71 of the CMS - that is that the "carve outs" (comprising the Swimming Pool, Change Room, Community Hall, Commercial Parking Area, accessways, foot paths (walkways) or other facilities at Pacific Lakes"). Submissions in relation to Orders 13 and 15
In order to understand the challenge in respect of ground 5, it is necessary to understand what the Inconsistency issue was.
In its written submissions in chief, at [85], the appellant described the issue in the following terms: At its nub, the Inconsistency issue involved the propositions that: (a) having regard to the fact restricted common property, as defined in strata by-law 1.1, included, under (D), "the open space areas outside buildings in Pacific Lakes Commercial (as those areas are defined in the community management statement)" … strata by-law 26.1 purported to confer restricted use of those open space areas on the appellant; (b) but that, under CMS 53.5 the only relevant facility in the common property of SP 69205 to which the appellant could be granted restricted use was a Subsidiary Open Space area, which did not include open space areas outside buildings in Pacific capital Lakes Commercial.
The appellant put forward "three propositions of construction relating to the Inconsistency Issue".
The first proposition was that clause 66.3 of the CMS required the grant of exclusive use of the Restricted Subsidiary Property. However, at law, an owners corporation could only grant exclusive use of common property by a by-law that complied with s 51(1) of the 1996 Management Act. Such a grant, the appellant submitted, "required the grant to be to an owner or owners of lots in the scheme, and not to a community association". The appellant submitted the Tribunal accepted this proposition at JD [268]-[273].
A by-law of the respondent made under s 54(4) was a restricted use by-law, which the appellant said was a "legally distinct concept" to an exclusive use by-law. Consequently, the grant under" by-law 26 was not a grant required by clause 66.3 of the CMS.
In reply, the respondent says: 1. Clause 53.7 of the CMS requires a subsidiary Association to grant restricted use or exclusive use. The grant of restricted use is sufficient to comply with this clause. 2. Clause 66.5 permits the grant of restricted use. The respondent is a Subsidiary Association to which this clause applies. By-law 26.1 complies with this requirement. 3. Lastly, the grant made under s 54 of the 1989 CLMA was to restrict the use of the common property "to the community association". This is what by-law 26.1 does.
The second proposition of the appellant was that, insofar as by-law 26 was capable of restricting the use of restricted common property to the appellant, the grant made "failed to comply with the mandatory requirement of the [1989 CLMA], s 54(7)(a), by failing to include a description of the property to which it applies.
Reliance was placed on the decision of the Appeal Panel in The Owners - Strata Plan No 63731 v B&G Trading Pty Ltd [2020] NSWCATAP 202 (B&G Trading). That decision related to the SSMA, not the 1996 Management Act. The passage relied on by the appellant was the statement at [148].
After referring to the "difficulty of the definition" in (e) in the definition of restricted common property found in by-law 1.1, which refers back to the CMS, the appellant says the definition of Open Space Area "does not comprise" the facilities specified, such as the Security Gate etc. As such, the appellant submits, "the Open Space Area is the entirety of the Pacific Lakes, save for the exclusions specified in the definition in CMS by-law 71". This would lead to the result that Open Space Area "thus includes owners' private lawns, backyards and other private houses and buildings themselves. It includes each of the 4 strata lots in Pacific Lakes Commercial".
Of such construction, the appellant says at paragraph [100] of its written submissions in chief: Plainly the CMS does not contemplate that the Community Association will be granted restricted use of the entirety of the Open Space Area - that would mean that it would have the power to control who could use private property of lot owners in Subsidiary Associations, including lots 1 to 4 in SP 69205, and the conditions for that use, pursuant to CMS by-laws 61.3 and 66.6. So much is apparent from CMS by-laws 61.1, which does not mandate that the Open Space Area is Restricted Subsidiary Property (unlike, for example, the swimming pool, which is mandated by CMS by-law 54.1).
Consequently, the appellant says: 1. for a by-law to be effective it "must identify the part of the Open Space Area to which it grants the appellant restricted use. 2. Subparagraph (e) of the definition of restricted common property in by-law 1.1 "fails to do so, for the simple reason that "the open space areas outside buildings in Pacific Lakes Commercial" are not defined in the CMS, so that the premise on which the definition is based does not exist".
The appellant then refers to the reasons of the Tribunal's at JD [276]-[280]. The appellant accepts the statement of the Tribunal at JD [278], where the Tribunal said: … the CMS 71.2 definition effectively defines the open space area in Pacific Lakes Commercial as that part of Pacific Lakes Commercial that does not comprise the items of Restricted Subsidiary Property explicitly identified in CMS 53.5 plus (not including) "accessways, footpaths (walkways) or other facilities at Pacific Lakes.
However, the appellant says this does not assist in identifying "the open space areas outside buildings in Pacific Lakes Commercial" defined in the CMS, being the property 'describe' (CSM Act s 54(7)(a)) in (e)". These areas, the appellant submits, are "a subset of the Open Space Area in the Pacific Lakes Commercial, and not the entirety of it, if for no other reason that the Open Space Area in Pacific Lakes Commercial includes areas inside buildings in Pacific Lakes Commercial. In this regard, the appellant refers back to its submission that such property would include the four lots in the strata scheme."
The appellant continues: Since the CMS does not define "the open space areas outside buildings in Pacific Lakes Commercial", the purported grant of restricted use of those areas to the appellant by strata by-law 26.1 fails, with the same consequences as set out in para 93 above.
At [93], the appellant said, "by its failure to comply with the 'mechanisms to achieve' the grant of restricted use set out in [clause 66.3 of the CMS], strata by-law 26.1 was ineffective to grant restricted use of the respondent's common property denoted in (e) of the definition of restricted common property (the open space areas outside buildings in Pacific Lakes Commercial) to the appellant".
In reply on this topic, the respondent said that there was a "description of the property to which it applies" being the requirement of s 54(7)(a) of the 1989 CLMA. This requirement was different to the requirement to identify "a specified part" of the common property that might apply in the making of a common property rights by-law under the SSMA.
Further, the respondent says the appellant's submission that owners private lawns etc could be included in the definition of Open Space Area should be rejected because the chapeau in clause 53.5 of the CMS has words of limitation, namely "which are (or may be) available for use by all owners and occupiers".
Next, the respondent says the by-law cannot be challenged because it was made more than 2 years before the proceedings were commenced. Consequently, s 54(8) of the 1989 CLMA prevents that challenge.
The respondent then says that the term Subsidiary Open Space Area is not defined in the CMS. The only definition is of Open Space Area. The respondent then continues in its submissions in reply at [140]: 140 There are two reasons why open space areas in the subsidiary scheme are for the … community association to maintain and repair: 140.1 First, if an open space area is not one of the listed items in the definition of the term Open Space Area, and it is located within one of the subsidiary schemes such as the respondent's scheme, as diagrammatically described in clause 2 of the CMS …, then it is a Subsidiary Open Space Area. 140.2 Secondly, if an open space area is available for use by all owners and occupiers in the residential schemes, then it falls within the chapeau of CMS 53.5. Once it is accepted that only open space that meets the CMS 53.5 availability requirement can be Restricted Subsidiary Property, contrary to AS 49 and 101, specific listing is unnecessary.
Finally, the respondent says, "Gardens are the epitome of facilities which are available for use by all owners and occupiers".
The third proposition was as follows: The third submission is that even if strata by-law 26.1 was effective to grant restricted use of "open space areas outside buildings in Pacific Lakes Commercial" (whatever that precisely means), it does not include the carve-outs in the definition of Open Space Areas in CMS by-law 71.2.
Here, the appellant says the Tribunal accepted this submission (at JD [281] but did not then give effect to it. The appellant submitted (at [107] of its written submissions in chief): … Thus, "other facilities at Pacific Lakes" are not an Open Space Area, and cannot form part of "the open space areas outside buildings in Pacific Lakes Commercial" of which the appellant is granted restricted use by strata by-law 26.1".
The appellant said the expression "facilities" is not defined. It should be given its ordinary English meaning and interpreted ejusdem generis, reference being made to the expression "other facilities" which, the appellant says is "the catch-all reference to facilities … of the kind already listed in the definition".
Consequently, the appellant said the gardens, the subject of orders 13 and 15 "are carved out from the definition of Open Space Area in clause 71.2 of the CMS, and thus are also carved out from the definition of open space areas outside buildings in Pacific Lakes Commercial in the definition of restricted common property in by-law 1.1 (e).
In response, the respondent again refers to the definitions found in by-law 1.1 which, in turn, refers back to the definition of Restricted Subsidiary Property in the CMS. Reliance is placed on the chapeau to clause 53.5 of the CMS.
Alternatively, the respondent says that the words "other facilities" is not a catch-all reference in the manner contended by the appellant. On this submission the respondent says (respondent's written submissions [145]): … The CMS must be construed as a whole, and some assistance can be obtained from CMS 61. CMS 61.4 (a) identifies the available use for Open Space Areas as being "only for passive recreation". Passive recreation is somewhat different to conducting a picnic or children playing in a children's playground. Adopting the ejusdem generis approach … the carve out only relates to facilities used for active recreation.
In reply, of this last point, the appellant says the reference to passive recreation is illusory, submitting that activity such as walking or sitting in a garden as opposed to walking or sitting in a Picnic Ground is not explain. Further, the appellant says resort to use of a facility as a criteria for assessing whether it is restricted common property is inapposite.

Decision in respect of orders 13 and 15

It is convenient to deal with the parties' submissions by reference to the three contentions identified above.
As to the first matter, namely that there has been no grant of "exclusive use" as required by clause 66.3 of the CMS, it is first necessary to consider what the expression "exclusive use" means in the context in which it appears in accordance with the approach to interpretation set out in the decision of Tate.
The CMS must be interpreted in the context of the relevant community land legislation. In my view the following aspects of that legislation are relevant: 1. The mechanism by which rights can be granted to a community association by a strata scheme forming part of the community scheme under that legislation is: 1. Part 5 Access to schemes of the 1989 CLDA, which relates to accessways (a matter discussed above); or 2. Section 54 of the 1989 CLMA, which relates to by-laws restricting the use of property. In the case of a strata plan, this restriction is in respect of common property: s 54(4). 1. A review of the 1989 CLDA and the 1989 CLMA indicate that there are no provisions relating to the grant in terms of "exclusive use" within either Act. 2. It is common ground that the relevant strata schemes legislation does permit the grant of exclusive use rights (see e.g. Division 4 Special provisions for by-laws conferring certain rights or privileges of the 1996 Management Act, s 51). 3. The 1996 Management Act did not permit a grant of exclusive use to a person other than a lot owner and therefore no power under the strata schemes legislation to make a by-law for the purpose of the CMS. On this aspect, the parties made reference to various decisions concerning the inability of an owners corporation to create an exclusive use by-law to a person who was not a lot owner within the strata scheme. The decisions referred to included that of Darke J in Noon v The Owners - Strata Plan No. 22422 [2014] NSWSC 1260. There appeared no dispute concerning the principles to be derived from these cases.
In light of these propositions, in my opinion, the meaning of "exclusive use" used in the CMS cannot have the same meaning as when used in the strata schemes legislation. Rather, accepting (as the parties appear to) that the only means by which by-laws could be made in favour of the appellant was by the mechanism provided in s 54 of the 1989 CLMA (unless Part 5 of the CLDA was engaged), the expression "exclusive use" must be interpreted in this context.
A reading of s 54 of the CLMA indicates that a restriction imposed under that section may be to one or more of the bodies forming the community scheme. This is what is contemplated by s 54(4). If to only one of the identified entities, in my view the grant would be "exclusive use" as that term is used in the CMS. On the other hand, if the grant was made to multiple entities, the grant would be "restricted use", that is restricted to the entities identified in any by-law made under this section.
This, I understand to be the submission of the respondent where it said the use of the common property granted by by-law 26 was to the community association only.
Such an interpretation is consistent with the concept of granting exclusive use in the context of a community scheme, where those bodies to whom rights might be granted under s 54, make the property, the subject of any restricted use, available to their members in accordance with their own constitutional documents.
In submissions, the appellant did not appear to suggest there was any way by which "exclusive use" could be granted for the purpose of complying with clause 66.3. Rather, it's submissions appear to reduce to the following: 1. the concepts of "exclusive use" and "restricted use" were legally distinct concepts; and 2. strict compliance with clause 66.3 had not been achieved because the grant was not one of exclusive use. Therefore, the grant failed.
It seems to me that the drafters of the CMS should be taken to have understood the legislative requirements for the creation of any rights to which clauses 53 and 66 applied. Understood in this way, it seems to me that a grant for the purpose of clause 66.3 satisfied the requirement of "exclusive use" if the grant was to the appellant only, not other entities to which a grant could have been made as provided in s 54(4) of the 1989 CLMA.
Accordingly, I reject the first contention.
In relation to the second matter raised by the appellant, the failure of by-law 26 to meet the requirements of s 54(7), as noted above the appellant relied on the decision of the Appeal Panel in B&G Trading, particularly at [148]. It is useful to set out the context in which that statement was made. At [146]-[148] the Appeal Panel said: 146 In our opinion by-law 32, on its proper construction, does not confer any special privilege in respect of the whole of the common property. That submission, if accepted, would mean that as long as the lot owner could establish a "connection" with the Lot 148 work, that lot owner could perform work to any of the common property in this two tower complex with 27 levels on the eastern side and 18 levels on the western side. The submission amounts to saying the owner could, for example, conduct work on the roof of either tower if some connection could be made with the Lot 148 work. Of course, such may be most unlikely, but it is not excluded by the respondents' construction. 147 We also do not think by-law 32 confers any special privilege in relation to "a specified part" of the common property. We think the words "specified part" require something more than being able to say the common property works are "connected with" the Lot 148 work. 148 Although not identical to the words "the particular action proposed" in s 108 as construed in Stolfa, we think, applying common sense and reasonableness, some greater specificity would be required to meet the description "in respect of … any specified part of the common property" than a mere "connection". "Specified part" has the flavour of identification of a geographical description. If so, and we think this is the meaning of "specified part", then that would serve the public policy function of notifying interested parties (such as potential purchasers of lots), with reasonable precision, the particular common property which may later be the subject of work.
In B&G Trading, the Appeal Panel was concerned with a grant of a "specific part" of the common property. This statement was made in the context of the requirements for a by-law to which s 142 of the SSMA applied and the reference in that section to "any specified part of the common property".
I accept the respondent's submission that this case provides no guidance as to the expression "a description of the property to which it applies" found in s 54(7) of the 1989 CLMA.
The question is, do the definitions provide a sufficient description? This in turn raises the question of what are Subsidiary Open Space Areas?
The grant in by-law 26.1 is of "restricted use of restricted common property" with a special privilege "to control, manage, operate, maintain and replace restricted common property".
The first point to note is that the grant is only in respect of common property not lot property. The suggestion by the appellant that it purports to regulate lot property, namely Lots 1 to 4 in the strata scheme must be rejected.
Secondly, the grant in 26.1 does not reserve to the respondent any common property of the respondent that fits within the definition of restricted common property. Nor does the definition of restricted common property in by-law 1.1. Consequently, when considering the sufficiency of the description, all that is required is for the grant to identify the property in question. This is done by reference to the definition of Restricted Subsidiary Property in the CMS, referred to in the chapeau to the definition of restricted common property in by-law 1.1 and the specific definitions in clauses (a)-(e) thereof.
As stated above, the definition of Restricted Subsidiary Property is found in clause 53.5 of the CMS. As the chapeau of that clause indicates, Restricted Subsidiary Property are those facilities "which are or may be available for use by all owners and occupiers" … "located in a "subsidiary scheme" including the facility specified in subclauses (a)-(e)".
In a community scheme, that is hardly a surprising way to describe property which is to be shared, in order to distinguish it from property which is lot property or common property that is only available to those in the strata scheme (emphasis added).
Different requirements might apply if only a specific part of common property is to be the subject of the grant. However, that is not the case here.
The question remains whether the common property, the subject of orders 13 and 15, is within the definition of the property being granted.
Restricted common property includes property within the definition of clause 1.1(e), namely "the open space areas outside buildings (as those areas are defined in the community management statement)". As the definition in by-law 1.1 makes clear, it is part of Restricted Subsidiary Property in the CMS.
The appellant says that the expression in the definition in (e) is not defined in the CMS. As a result the grant fails.
I do not accept this proposition for the following reasons.
Clause (e) of the definition of restricted common property in by-law 1.1 refers to "open space areas outside buildings". It seems to me that the identified garden edging, landscaping and garden areas referred to in orders 13 and 15 are, self-evidently, areas outside buildings. Otherwise, clause (e) indicates that the open space area are "those areas … defined in the community management statement".
Open Space Area in the CMS is defined in a manner that excludes specified facilities. In the absence of a definition about what is included, there is again no reason why the expression Open Space Area should not be given its ordinary English meaning. Such meaning should have regard to the context in which it is used, namely a document regulating the planning and development of land as part of a community scheme.
On the New South Wales government website, public open spaces described as in the following terms: Public open space is infrastructure that is essential for communities and creating great places to live. It encompasses parks, natural areas and linkages, waterways and foreshores, informal parklands, sports grounds and courts, play spaces, historical sites, and recreation trails for walking and cycling. See https://www.planning.nsw.gov.au/policy-and-legislation/open-space
In the National Dictionary of Building & Plumbing Terms, the following definition is provided: Area of land at ground level either reserved in its natural state or paved or landscaped, and usually accessible to the public (public open space) and available for recreational use If it is privately owned, open space may be non-accessible or have access limitations. National Dictionary of Building & Plumbing Terms, online ed, accessed 10 September 2024.
By either definition, Open Space would include the property the subject of orders 13 and 15 (subject to any exclusion specified in that definition). Being part of Restricted Subsidiary Property, it is a space to be made available to owners and occupiers under the CMS. In this regard, clause 61 of the CMS provides: 61 Using Open Space Areas Who may use Open Space Areas? 61.1 If there are any Open Space Areas in Pacific Lakes, there may be 2 types of Open Space Areas: (a) the open space area in Community Property; and (b) the open space areas in Subsidiary Schemes which form part of Restricted Subsidiary Property. 61.2 Subject of this by-law, owners and occupiers may use Open Space Areas.
In my view, when considering what was intended to be granted, and having regard to the constitutional function of the by-laws and the CMS, it seems clear that grant was to be made of all common property which could fit within the definition of Restricted Subsidiary Property being property that could be made available for owners and occupiers.
The appellant contends that, in the absence of a specific definition in the CMS, the grant fails. For the reasons outlined above, in my view this submission should not be accepted and the documents describing property, namely the by-laws and the CMS are "a sufficient description of the property to which it applies" for the purpose of s 54 of the 1989 CLMA.
Accordingly, contention two is not made out.
As to the third contention, the appellant contends that gardens are "other facilities" which are "carved out" because of the exclusive definition of an Open Space Area in clause 71.2. That is the property the subject of orders 13 and 15 are "other facilities" and thereby excluded from the definition of Open Space Area.
In my view, this contention should not be accepted for the following reasons: 1. If these types of areas were to be excluded, it is difficult to see that Open Space Area would have any meaning in the context of Subsidiary Open Space Area. The appellant does not offer any view as to what would be included. 2. While Subsidiary Open Space Area is part of what is described as "facilities" in clause 53.5, it is also expressly included in "Open Space Area" (found in clause 61 above). Inter-alia, clause 61 regulates the use of Open Space Areas. 3. Clause 61 is found in Part 5 Pacific Lakes and Community Property. This part identifies what property is available for community use. 4. As is evident from clauses 54-64, each of these clauses regulates the use of the property to which they refer. 5. Importantly, those facilities identified in clauses 54, 55, 56, 57, 58, 59, 60, 62, 63 and 64 are the ones excluded from the more general definition of open space. This is because each has a specific purpose and each have separate provisions regulating their use. In this way, while they might otherwise fall within the description of Open Space Area, they are excluded so that the use may be regulated in a manner appropriate to the type of facility. 6. There are no "other facilities" designed for a specific purpose. However, the definition would permit such a facility to be added, in which case the CMS would need amendment to provide for its use.
Applying this interpretation of the CMS, it seems to me that despite Subsidiary Open Space Area being included in the facilities forming the Restricted Subsidiary Property, the better view is that the expression "other facilities" does not include Subsidiary Open Space Area within the definition of Open Space Area.
Even if I am wrong on this point and a Subsidiary Open Space Area did fall within the definition of "other facilities", it still forms part of the grant made under clause 26.1 as it is part of the Restricted Subsidiary Property as it is a "facility" within the meaning of clause 53. 5 of the CMS. In this case, it is still regulated by clause 61 as it falls within the expression "the open space areas in Subsidiary Schemes which form part of Restricted Subsidiary Property".
In light of these conclusions, the challenge to orders 13 and 15 fails

Order 19 - Ground 10

This ground concerns the order for payment of water and sewer charges. The appellant says these costs should be shared equally between it and the respondent "on the basis the water and sewerage services are provided to both restricted common property (that is, Restricted Subsidiary Property) and to common property that is not restricted common property.

Submissions in respect of order 19

In its submissions at [132]-[135] the appellant challenges the factual findings of the Tribunal. At [135] the appellant said: The Tribunal ought to have found that the meter serviced by the Community pool, Community Hall, Community change rooms, male, female and disabled toilets, fire hose reels and garden hose taps.
Then, at [136] under the heading "Legal status of facilities serviced by the meter" the appellant said: In light of the factual findings made and that ought to have been made concerning the facilities serviced by the meter, as set out above, the Tribunal ought to have found that of those facilities: (a) the Community pool, Community Hall and Community change rooms were restricted common property (Restricted Subsidiary Property) under the SP by-laws (items (b), (c) and (d) of the definition of restricted common property in strata by-law 1.1 … . (b) the male, female and disabled toilets and garden hose taps were common property of SP 69205 but not restricted common property. (c) the status of the fire hose reels was unable to be determined.
Here, the appellant says the Tribunal, at JD [129], "treated the male, female and disabled toilets as part of the "Lobby Area" for the purpose of the decision".
However, the appellant said the Tribunal made no finding about whether the Lobby Area was restricted common property. The appellant says "it plainly was not". In this regard, the appellant said it did not fit within the facilities listed in the definition of restricted common property in by-law 1.1 (a)-(e) nor was it an open space area outside buildings in the strata scheme.
The appellant refers back to its submissions at [89]-[93] concerning the failure of strata by-law 26 to comply with the compulsory requirements of CMS by-law 66.3 restricted common property to the appellant. It will be recalled from the above that this proposition concerned the expression "exclusive use", an argument which I have rejected.
Further, open space areas outside buildings in Pacific Lakes Commercial could not include the toilets in the Lobby Area. They are neither outside the building nor are they open space.
As to the garden hose taps, the appellant said, "the gardens are not restricted common property". Again this is a submission which I have rejected above.
Consequently, the appellant says that the "Tribunals inferred finding that the facilities serviced by the meter were all part of Restricted Subsidiary Property …cannot be maintained."
Next, the appellant says, there was no evidence about the relative use of the water and sewerage services provided through the meter between the different facilities serviced by it.
Finally, as to the orders made, which relate to charges outstanding from 14 October 2014, the appellant says that the only dispute concerned charges outstanding as at March 2022 being charges apportioned 50/50 between the parties since resolutions were passed in November 2020 (being the resolutions subject of order 20). Of charges payable prior to the date of those resolutions, the appellant says it has "long since paid those charges, in accordance with the 2014 resolutions".
In so far as the last proposition is correct, I do not consider that, of itself, is a reason to set aside order 19. If no payment is to be made, no action is required by the order.
In response, the respondent says, "at its simplest, a water service for Restricted Subsidiary Property falls to the Respondent to pay". Further, there is no basis to impose an arbitrary 50% allocation between the parties. Rather, any charge to be made is "in accordance with … relative unit entitlements, as provided in [the 1989 CLMA] s 20".
As to what facilities the meters in question service, "the appellant did not take up its opportunity to file evidence or make submissions as to whether that water also supplied the toilets at the community lobby hall area and the fire hose and reels and garden hose taps". Such a challenge should not now be permitted because of the principle in Coulton v Holcombe (1986) 162 CLR 1 ; [1986] HCA 33 at 7-8.
As to the Lobby Area not being in the list of specific property in the definition of restricted common property found in by-law 1.1, the respondent says "the list in that definition is an illustrative and not exhaustive list on its face". In this regard the respondent says "one is directed back to CMS 53.5 to ascertain if the lobby of the Community Hall is either part of the Community Hall or otherwise available to all owners and occupiers."
Lastly, the respondent says that the various challenges made are to findings of fact and should not be permitted in this appeal.
In reply, the appellant says the respondent has misunderstood its submission. Having referred back to the respondent's argument concerning the chapeau in clause 53.5 of the by-law and that the Lobby Area is available to all owners and occupiers, the appellant says at [62] of its written submissions in reply: Again, there is no finding to that effect and it is a relevant in any event for the reasons already given. The failure to list Lobby Area as one of the facilities that comprise restricted common property in the definition of strata by-law 1.1 … is fatal to that submission.

Decision in respect of Order 19

The challenges made are to the factual conclusions of the Tribunal or, at best, raises a mixed question of fact and law. There was no application for leave to appeal and no question of law identified in relation to this challenge.
Having regard to the authorities to which I have referred above, these are not challenges that can be pursued in this appeal limited to a question of law.
Further, and in any event, I have found the garden was Restricted Subsidiary Property being the subject of the grant to the appellant under by-law 26. This means the garden taps are part of that property and the responsibility for paying the costs thereof are upon the appellant to be dealt with in accordance with by-law 26.2 and the CMS.
As to the Lobby Area, insofar as any grant in by-law 26 was said not to comply with clause 66.3 of the CMS (the argument concerning the requirement to grant "exclusive use") this argument fails for the reasons set out above.
In relation to the assertion the Lobby Area was not Restricted Common Property this matter does not seem to have been raised in the points of defence in response to a claim for an order that the charges in question be paid by the appellant. However, it does appear to have been raised in the respondent's outline of closing submissions found in appeal book (AB) volume 2 page 539 - [112].
At [130] the Tribunal made the following finding: … The evidence established that patrons of the Community Hall use all of the facilities within the Lobby Area.
Of the expression "use", the Tribunal said at JD [165]: 165 The object of the Community Land Development Act 1989 as set out in in section 4 (1) (a) is to facilitate the subdivision of land into parcels for separate development or disposition, "with an interest in associated land in the nature of common or shared property". Section 54 (4) of the CLMA permits the applicant to grant the respondent the "use" of part of its common property. Taking into account the purposive construction of these provisions as authorised by section 33 of the Interpretation Act, in my opinion the concepts of "sharing" the associated property and the common "use" of the property imply effective use - such that it is not open to the Community Association to eschew the sharing and use of a building element of associated property which is not convenient.
I agree with this statement. Also, consistent with the principles in Tate, the expression "facilities which are (or may be) available for use by all owners and occupiers" should be interpreted in a similar way."
As such, whether or not it is correct as a matter of fact that the Lobby Area was constructed as part of the Community Hall, and therefore forms part of the Community Hall in the manner I explained in relation to accessways above, it seems to me: 1. the open area of the Lobby Area is a means of access to the Community Hall and therefore, like the Decking, is a Subsidiary Accessway; or 2. both the open area of the Lobby Area and the toilets are facilities which, by by-law 26.1, are facilities to be made available as that expression is used by clause 53.5 of the CMS; and 3. the facilities are necessary for the effective use of the Community Hall.
It cannot have been the intention of the drafters of by-law 26 to create Restricted Subsidiary Property which could not be accessed.
It follows that the submission that the all the property referred to by the appellant in connection with this challenge is restricted common property within the meaning of the by-laws which was the subject of grant by by-law 26. Consequently, it is Restricted Subsidiary Property, the cost of which are payable by the appellant.
This ground of appeal therefore fails.

Jurisdiction of the Tribunal to determine claims under ss 80 and 82 in proceedings referral from an adjudicator

This challenge relates to Orders 20-23 and ground 6 in the Notice of Appeal.
In short, the appellant contends the Tribunal did not have jurisdiction to hear and determine an application for relief under section 80 and 82 of the 1989 CLMA (the order making power for which is reserved to the Tribunal) in proceedings referred to the Tribunal by an Adjudicator under s 71B of the 1989 CLMA.

Submissions concerning jurisdictional issue

First, appellant said that the Tribunal did not consider how the claim for orders under ss 80 and 82 came before it. Reference was made to what the Tribunal said in The Owners - Strata Plan No. 55236 v Community Association DP No. 270003 (No. 2) [2018] NSWCATCD 37at [23]. The passage identified says: Therefore, because the Tribunal is only given the same powers as the Adjudicator in proceedings that are referred by the Adjudicator to the Tribunal, the Tribunal does not have power to award costs in the Adjudication Proceedings. Given that statutory position, the fact that the Adjudication Proceedings were heard on referral to the Tribunal at the same time as the Tribunal heard the proceedings brought by the Community Association (SCS 17/28383) is of no moment.
On this point, the appellant says the original application for Adjudication, sought orders that various resolutions be declared invalid, without referring to s 82 of the 1989 CLMA. In addition, it did not seek orders to vary the CMS. As to the orders under s 82, the appellant says these were reserved to the Tribunal, not an Adjudicator. This last point is not a matter in dispute between the parties in this appeal.
Next, the appellant refers to the directions made by the Adjudicator requiring the filing of points of claim "setting out orders that can be made by an adjudicator or the Tribunal and the factual and legal basis for the claim".
The appellant says that, by January 2022 when the points of claim were filed, the 1989 CLMA had been repealed and replaced by the 2021 CLMA. There was no power conferred on the Tribunal by the 2021 CLMA in respect of a community management statement that was registered at the time of registration of the relevant community plan. Rather, the only power in the 2021 CLMA was contained in s 139 (amendment or repeal of management statement) and s 140 (which concerns revocation of a management statement).
The appellant then referred to the decision of the Appeal Panel in Owners Corporation SP 80412 v Vickery [2018] NSWCATAP 29 (Vickery) particularly the statement at [68]. In turn, reference was made to the decision of Forster J in Beck & Anor v Owners Corporation Strata Plan No 64622 [2009] NSWSC 962 (Beck), referred to in Vickery. Here, the appellant said in its submissions in chief at [123]: The reasoning in Vickery applies equally to the respondent's attempt to clothe the Tribunal with power to make orders under CLM Act ss 80 and 82, which only the Tribunal can make, by the expedient of seeking those orders in a Points of Claim in a referred Adjudicator's application. Moreover, the Points of Claim was only ordered to particularise the basis for their application for Adjudicator's orders, not to provide the respondent with an opportunity to seek new relief.
Consequently, the appellant submits, the Tribunal lacks jurisdiction to make orders under ss 80 and 82 in the referred proceedings.
Further, the appellant says the Points of Claim were effectively an amendment of the application for Adjudicator's orders, without leave, to introduce a new claim. Reference was made to s 53 of the NCAT Act. Having referred to the rule in Weldon v Neal (1887) QBD 394 (Weldon v Neal) at 395, namely that "amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments". Recognising that the rule in Weldon v Neal is subservient to s 53 of the NCAT Act, the appellant nonetheless says that the principle informs what is in the interests of justice and that "the interests of justice dictate that if the legislature has determined that, as from 1 December 2021, applications can no longer be brought to vary a developer Community Management statement, then the respondent should not be able to do so too included in an application that "happens to have been expanded at the time".
Finally, insofar as the Tribunal made order 20 under s 82, it did not provide procedural fairness to those affected by any order in validating the motions to which the order referred.
The same submissions are made concerning orders 21-23, which the appellant described as "procedural direction is to facilitate the termination of orders to vary the CMS under CLM Act s 80". I will return to this matter below, orders 21-23 being interlocutory decisions requiring leave.
In reply, the respondent first noted that the direction to file points of claim was made by the Adjudicator on 14 October 2021. The respondent says order 2(a) expressly permitted the service of a document setting out orders which could be made by an adjudicator or the Tribunal, the request for the orders in validating the resolutions having been made in the adjudication application. As such, the respondent said "an application for such orders was not new when the points of claim were prepared.
As to the procedural fairness point, the respondent says what was being invalidated was a resolution of the association rather than the community management statement.
As to the referral of the proceedings, nothing in s 71B prevented the adjudicator from referring an application to the Tribunal where the adjudicator could not make the necessary orders.
As to the point in Weldon v Neal, having referred to various authorities of the courts concerning amendment, the respondent said that accepting the appellant's position would not be in the interests of justice. "To the contrary, avoiding the multiplicity of proceedings is certainly in the interests of justice".
As to the introduction of the 2021 CLMA, the respondent refers to Schedule 3, clause 6 which states: 6 EXISTING PROCEEDINGS Any proceedings commenced but not determined or finalised under a provision of the former Act are to be dealt with and determined as if the former Act had not been repealed.

Decision in respect of jurisdictional issue and orders 20-23

The Tribunal rejected the appellant's submission that it lacked jurisdiction to determine applications under ss 80 and 82 of the 1989 CLMA when dealing with an application referred to it by an adjudicator pursuant to s 71B of that Act.
At JD [372] the Tribunal said: I do not accept the submissions of the [appellant] that the Tribunal lacks power to make the order, as the order is not sought in the Tribunal's original jurisdiction. I accept the submission of the [respondent] that any limitation on the Tribunal's powers to be the same as the adjudicator's power by reason of CLMA 76, applies only to orders that could have been made by the Adjudicator. I accept that an order under sections 80 and 82 of the CLMA of is not such an order.
The reference to the submissions of the respondent were those recorded at JD [371]. Those submissions were to the effect that: 1. Section 76 of the 1989 CLMA only limits the power of the Tribunal in respect of an order that could have been made by the Adjudicator. However, it does not deprive the Tribunal of jurisdiction to make orders under ss 80 and 82 of the 1989 CLMA. 2. Section 76 should not be construed in a way that deprives the Tribunal of its general jurisdiction so that it is restricted to only make orders in the proceedings that an Adjudicator can make. Here, reliance was placed on s 29(1) of the NCAT Act which prescribes the "general jurisdiction" of the Tribunal to make orders.
As stated above, it is common ground that ss 80 and 82 of the 1989 CLMA are order making powers reserved to the Tribunal. That is, an adjudicator cannot make such orders.
Insofar as an application concerns orders which an adjudicator can make, the scope of the power is to "make an order for the settlement of a dispute or complaint to which the application under Division 2 relates, whether or not the order made is the order sought": s 71(1) of the 1989 CLMA.
Section 29(1) of the NCAT Act provides: 29 General jurisdiction (1) The Tribunal has general jurisdiction over a matter if - (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.
As referred proceedings do not involve the exercise of jurisdiction of the type set out in subs 29(1)(b) of the NCAT Act and because s 71B and 76 the 1989 CLMA permits both referral to the Tribunal and grants order making power to the Tribunal, it is clear the Tribunal is then exercising general jurisdiction within the meaning of s 29(1)(a). This was acknowledged by the parties in Vickery at [23].
Once it is accepted that the Tribunal is exercising general jurisdiction, subject to consideration of one matter, it seems to me that the mere fact of referral by an adjudicator should not otherwise prevent the Tribunal exercising its general jurisdiction in respect of other matters under the same legislation.
This view is supported by consideration of the text of subs 71B(1)(c) which provides power of refer adjudication proceedings may be exercised for any "other good reason" in addition to those in subsections (a) and (c). In my opinion, such "other good reason" would include because there is a dispute between the same parties under the same legislation which only the Tribunal could resolve - in this case applications for orders under ss 80 and 82 of the 1989 CLMA. In circumstances where there are interrelated considerations of a fact and law, such a referral would be appropriate.
In the present case, as the submissions above record, both parties accept that the original application which was being considered by the Adjudicator included a request by the respondent (then self-represented) for orders to invalidate the resolutions of the appellant. So much is clear from the appellant's submission at [116] which states: … While the respondent's original application for Adjudicator's orders sought orders that certain resolutions of the appellant be declared invalid, without referring to the CLM Act, s 82 [found at AB 14 order 4.2), it did not seek orders to vary the CMS.
In this regard, I note the reference in the application for adjudication at AB 14, order 4.2 makes reference to ss 17 and 55 and schedule 1 of the 1989 CLMA, not to the order making powers of either an adjudicator or the Tribunal. However, it was clear that orders to invalidate by-laws were then being sought when the adjudication application was lodged in June 2021.
The Adjudicator considered the claims made in the adjudication application, and explained why she why she was transferring the proceedings and directing the provision of Points of Claim. In this regard, the limited order making power of the Adjudicator when considered in the context of the orders being sought to resolve all disputes between the parties, appears one of the reasons why the referral was made: see Adjudicator Rosser's reasons at AB [90]-[94].
Upon the order being made by the Adjudicator, the proceedings are before the Tribunal. As recorded by the date of the order (AB 90), this was on 14 October 2021, before the 1989 CLMA was repealed and replaced by the 2021 CLMA. As a result, as pointed out by the respondent in it submissions above, the proceedings are to be dealt with under the 1989 legislation.
Consequently, the Tribunal can determine both the issues which, but for the referral, the Adjudicator could have determined and the application in relation to ss 80 and 82 of the 1989 CLMA.
That is not to say the Tribunal's order making powers in connection with the proceedings referred are increased. As made clear in Vickery, on referral the powers of the Tribunal are not enlarged beyond the grant in the enabling legislation simply because the Tribunal is exercising its general jurisdiction. This matter is relevant to the question of costs, the last issue to be resolved in the appeal.
I note my view is consistent with s 36(1) of the NCAT Act, namely that the Tribunal is to give effect to the guiding principle, that is the just, quick and cheap resolution of the real issues in dispute. It would be a curious result if, as a matter of practice and procedure, the Tribunal was to require multiple applications to be made where all claims could be brought before the Tribunal in one proceeding.
There may be circumstances where it is inappropriate to permit applications for different types of orders to be brought in one application, such as the circumstances considered by the Appeal Panel in Brown v The Owners - Strata Plan No. 82527 [2022] NSWCATAP 328. However, such considerations do not arise in this case.
There are two further matters which I should deal with briefly.
First is the contention that there has been a denial of procedural fairness in connection with the making of order 20. This order invalidated particular resolutions at various meetings of the appellant.
In my view, it was not necessary to give notice of this application to the individual members of the appellant. The orders made did not affect property rights, in the sense that the CMS was not being altered. Rather, the resolutions appeared to concern levies to be imposed and payments to be made. Consequently, the procedural fairness ground in relation to order 20 fails.
The matters which remain to be resolved, about which the Tribunal has directed the registrar to give notice, seek relief under s 80 of the CLMA, that is a variation to the CMS. Such changes have the potential to affect for property rights of those affected. The giving of notice is appropriate and, in any event, cannot give rise to any relevant failure to afford procedural fairness.
In any event, I note orders 21-23 are interlocutory orders. As a result, there is no right of appeal on a question of law, leave been required to appeal interlocutory orders on any basis: s 80(2)(a).
It follows that the challenges to orders 20-23 fails.

Costs

The final matter to deal with is costs.
This relates to the decision of the Tribunal made on 22 April 2024 which provided: The [appellant] is to pay one half of the [respondent's] costs of the proceedings on the ordinary basis as agreed or assessed.

Submission on Cost Decision

In relation to grounds 11 and 12, the appellant said that the decision in Vickery should be followed. That is there is no power to award costs in respect of proceedings referred by an adjudicator to the Tribunal.
The appellant said that the Tribunal identified two distinctions in respect of the legislation it was considering under the 1989 CLMA.
The first was that the introductory words in s 71(1) did not appear in the corresponding words of s 138 of the 1996 Management Act. Those words were "except in relation to a dispute or complaint referred to the Tribunal or only within the jurisdiction of the Tribunal". Reference was made to CD [33(1)] and [34]-[35] of the cost decision.
The appellant said this statement was incorrect, the same expression being found in s 138(3)(b) of the 1996 Management Act.
The second distinction, which the appellant said the Tribunal made was that s 176 of the 1996 Management Act expressly prohibited an adjudicator awarding costs, whereas there is no equivalent provision in the 1989 CLMA.
This distinction, the appellant said was irrelevant, referring to the statement in Vickery at [58] that there must be an express power to award costs. In this regard the appellant referred to the decision of the High Court in Oshlack v Richmond River Council 1993 CLR 72; [1998] HCA 11 per McHugh J at [63].
Next, the appellant referred to the cost decision at CR [37]-[41].
First, the appellant said, was the Tribunal's proposition that s 76(1) is "similar but not identical to" s 184(2) of the SSMA: CR[39]. This point, the appellant said, was difficult to understand, there being no reason to compare those sections which address different matters.
Secondly, the appellant referred to what the Tribunal described as "a tension between ss 71(1) and 76(1) of the 1989 CLMA. In the cost decision at CR [41] the Tribunal said that "upon a referral by an Adjudicator the Tribunal can exercise the general jurisdiction under the NCAT Act and, in the present case, make costs orders pursuant to s 60" of the NCAT Act . The Tribunal then continued at CR [41]: The enabling legislation, the CLMA creates the exception to the otherwise constrained power of the Adjudicator by reason of the first clause of s 71. The exception is that the limited order making power of the Adjudicator does not apply to a dispute or complaint which is referred to the Tribunal or which is only within the jurisdiction of the Tribunal.
Here, the appellant said the statement was misconceived. In this regard, the powers of the Tribunal, on referral, are set out in Part 4, Division 4, relevantly s 76(1) of the 1989 CLMA. In short, s 71(1) is not concerned with the Tribunal's powers and there is no tension of the type identified by the Tribunal in the costs decision.
Consequently, the decision in Vickery should be followed.
In response, the respondent first looked at the history of the legislation, including s 53 of the Consumer Trader & Tenancy Tribunal Act 2001 (NSW) (repealed) (CTTT Act), s 53 dealing with costs of proceedings in that earlier Tribunal. Subsection 53(5) provided that the section did not apply in relation to proceedings under the 1996 Management Act or the 1989 CLMA.
Next, the respondent said s 176(1) of the 1996 Management Act prohibited an adjudicator making an order for the payment of costs. No such prohibition appeared in the 1989 CLMA. This, the respondent said, was an important distinction from the analysis in Vickery.
The respondent said the powers granted by section 60 of the NCAT Act were "fundamentally different terms and importantly, no longer contain the prohibition found in s 53(5) of the CTTT Act.
Next, the respondent refers to s 35 of the NCAT Act. The expression in that section is "subject to enabling legislation". The respondent says that for that section to be engaged (and thereby give rise to the exclusion of the cost provisions in s 60 of the NCAT Act) there must be "an inconsistency with both provisions" that "could not be obeyed simultaneously or if the master provision was intended to operate in relation to a particular matter". In respect of costs, the respondent says there is nothing in the 1989 CLMA Act that would "alter, impair or detract from the operation" of s 60 of the NCAT Act, reference being made to the decision of Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2, per Gageler J (as he then was) at [70].
Next, the respondent refers to the power to make an ancillary decision under the NCAT Act, which includes the cost decision. Section 60 is said to be a new and distinct order making power, the circumstances in which it can be exercised being prescribed in the conditions and restrictions applicable. In short, there is a specific power which takes precedence. Reliance was placed on the decision of Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trade Union of Australia (1932) 47 CLR 1; [1932] HCA 9 at 7. There, Gavan Duffy CJ and Dixon J (as he then was) said: When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
Next, the respondent says that because there is no relevant provision of the 1989 CLMA preventing costs, there is no inconsistency of the type that might arise for the purpose of s 35 of the NCAT Act. Hence, Vickery is distinguishable.
The respondent then makes a comparison between s 138 of the 1996 Management Act and s 71 of the 1989 CLMA. Here, the respondent submitted: Section 138 gave an adjudicator a power to settle a dispute or complaint, but prohibited the adjudicator from making an order for that settlement where there was a reference to the Tribunal. Sections 71, on the other hand, identifies limited circumstances in which an adjudicator could make an order to settle a dispute. Those circumstances exclude a dispute that has been referred to the Tribunal.
The respondent then says, even if the Tribunal's referred power is "limited to only those powers that an adjudicator had, absent a prohibition on a costs order which appears in [1996 Management Act], it cannot properly be said there is no power to order costs by a Tribunal under the [1989 CLMA] in a referral matter, once the [NCAT Act] had commenced".
Lastly, the respondent says that "the real point appears at CR 42, namely, the absence of prohibition", reference being made to prohibition in respect of costs.
In reply, the appellant refers to the former s 104 of the 1989 CLMA (which I have set out above). While s 60 of the NCAT Act provided "power to award costs after 1 January 2014, it had nothing to say about the power of an Adjudicator appointed by the Minister under s 109H of the [1989 CLMA]". In this regard, the respondent noted adjudicators were not members of the Tribunal but separately appointed. As such, an adjudicator "had no express power to order costs in adjudication proceedings brought under the [1989 CLMA]".

Decision in respect of the costs order

In Vickery the Appeal Panel determined that, on referral of proceedings from an adjudicator to the Tribunal, the Tribunal did not have power to make an award for costs in respect of the referred proceedings.
There, the Appeal Panel decided: 1. on referral, the Tribunal was only authorised to make orders which an adjudicator could make: Vickery at [68]; 2. there was no general entitlement to costs under the common law and no provision which said the limits imposed upon an adjudicator did not apply to the Tribunal: Vickery at [69]; 3. orders made by the Tribunal on referral "take effect 'as if an order were an order of an adjudicator'", reference being made to s 184 (2) of the 1996 Management Act. Consequently, an order for costs made in the exercise of referred powers was not an order which the Tribunal could make: Vickery at [70]; 4. the decision in Beck should be followed: Vickery at [75]. In Beck Forster J said at [22]: 22 As I have already noted, by reason of section 138(3)(d), an Adjudicator has no such power. Insofar as any matter is referred by an Adjudicator to the Tribunal, pursuant to section 164(1) of the Act, Mr Sirtes points out that as is provided by section 184(1), the Tribunal has the same powers as does an Adjudicator. In other words, the restrictions imposed on the powers of an Adjudicator by section 138(3)(d) carry over to limit the powers of the Tribunal where the Tribunal is exercising the functions of an Adjudicator.
In the present case, the respondent draws a distinction between the language found in s 71 of the 1989 CLMA and section 138 of the 1996 Management Act. I do not accept this is a relevant distinction affecting the applicability of the analysis in Vickery.
It seems to me that what must be considered is the powers given to the Tribunal on referral from an adjudicator as permitted by s 71B of the 1989 CLMA. Those powers are set out in s 76 of the 1989 Management Act. There, the section makes two important statements: 1. "the Tribunal has the same powers as the Adjudicator", that is "to make an order under Division 3 other than an interim order" (Division 3 being the division granting power to an adjudicator) or "to dismiss the application"; and 2. where the Tribunal makes an order, "this Act has effect in relation to [that order] as if the order were an order of an adjudicator".
As the Tribunal's powers are limited to that of an adjudicator, unless the adjudicator could award costs, the Tribunal's powers are similarly limited when dealing with the referred proceedings.
In relation to an order of an adjudicator made under Division 3, it is important to note that such order ceases to have effect "2 years after it is made" or "at some other time specified in the order": s 74(4) of the 1989 CLMA. As such, an order made by the Tribunal on referral would, similarly, be limited.
The respondent also draws a distinction to Vickery in that there is no equivalent in the 1989 CLMA of s 176(1) in the 1996 Management Act (a section which remained after the commencement of the NCAT Act in 2014). Section 176(1) provides (in respect of an adjudication under the 1996 Management Act): 176 Adjudicator not to make order with respect to certain matters (1) An Adjudicator may not, in connection with an application under this Part, make an order for the payment of costs.
A similar provision was found in the 1989 CLMA, being s 104 which I have set out above. However, this section (which referred to both costs of adjudication and costs of proceedings before the Tribunal) was repealed on the commencement of the NCAT Act.
Consequently, the respondent says, absence of any restriction in the 1989 CLMA, following repeal of s 104 is an important distinction from the analysis in Vickery.
I do not agree with this proposition. In my view, there must be an express grant to an adjudicator of a power to award costs. So much is recognised by the decision of the High Court in Oshlack referred to above and in Vickery. In Oshlack, McHugh J said at [63] (citations omitted): At common law, courts had no jurisdiction to award costs. The jurisdiction is statutory and has evolved gradually. It was regarded as necessary in order to avoid injustice. In modern times, the statutory language typically confers on the court a broad discretion to award costs, rather than declares that costs automatically follow the event.
A repeal of a provision which might have granted an adjudicator power to make a costs order in limited circumstances does not thereby give rise to a grant of power when it is removed. Rather, in the absence of express power, the limited right of an adjudicator to award costs previously found in s 104 of the 1989 CLMA was removed.
The absence of a power of an adjudicator to award costs, remains an inconsistency of the type explained in Vickery, a further reason why the Tribunal, in determining proceedings on referral under the 1989 CLMA, does not have power to award costs in connection in the proceedings so referred.
It follows that the analysis in Vickery should be followed and Tribunal has no power to award costs in connection with proceedings referred to it under s 71B of the 1989 CLMA.
Consequently, the order for costs, which includes costs of the referred proceedings should be set aside.
However, that is not an end of the matter.
As noted above, I have determined that the proceedings before the Tribunal included applications under ss 80 and 82 of the 1989 CLMA, which were proceedings brought in the general jurisdiction of the Tribunal to which s 76 of that Act did not apply.
On repeal of s 104 of the 1989 CLMA and the commencement of the NCAT Act, the powers of the Tribunal in the exercise of such jurisdiction is regulated by s 60 of the NCAT Act (unless r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (Rules) applies) . In the present case r 38, according to its terms, could have no application
Unlike the position concerning adjudications, upon the removal of the statutory provision in s 104 of the 1989 CLMA, s 60 granted a new statutory power to award costs.
As such, it was open to the Tribunal to award costs in connection with that part of the application relating to ss 80 and 82 of the 1989 CLMA.
While this might appear an anomalous result, in my view it is the result of the statutory drafting and the manner in which the 1989 CLMA was amended upon the introduction of the NCAT Act. In this regard, as a statutory decision-making body, the Tribunal must identify the order making powers granted in the statutes, including enabling legislation, to determine what orders it can make and in what circumstances. The fact there are different powers in different circumstances, even within particular legislation, does not provide a licence to ignore the terms of the statutory provisions by which power is granted.
As to an award for costs in connection with their applications under ss 80 and 82, although these applications were included with the referred proceedings, there is no reason why orders could not be made in relation to that part of the proceedings relating to orders solely within the Tribunal's jurisdiction. The power to make orders in respect of separate issues is well recognised in this Tribunal which has followed decisions of courts such as Bostick Australia Pty Ltd v Liddiard (No 2) [2009] NSWSCA 304.
It is not possible from the cost decision to determine what if any order should be made in connection with that part of the proceedings concerning ss 80 and 82. This will require an assessment by the Tribunal at first instance. It is not something that I am able to do in the circumstances of this Appeal and on the information presently before me.
For these reasons, the costs order made 22 April 2024 should be set aside and the proceedings are remitted to the Tribunal to determine any costs application that might be pursued in light of what I have said.

Orders

In light of the above reasons, the appeal should be dismissed save in connection with the order for costs made 22 April 2024.
In relation to cost of the appeal, as noted in Vickery at [79] and following, by reason of r 38A of the Rules, the costs rules in connection with this Appeal would be the same as those which applied to the proceedings at first instance.
Whether there is to be any application for costs in relation to the appeal will be a matter for the parties to consider in light of the above. However, I will make provision for such an application.
The orders of the Appeal Panel are as follows: 1. The appeal in connection with the costs order made 22 April 2024 is allowed and that order is set aside. 2. The proceedings are remitted to the Tribunal as originally constituted to consider what, if any, order for costs should be made, such determination to be made in accordance with these reasons. 3. Save as provided above, the appeal is dismissed. 4. In respect of costs of the appeal, the following directions apply: 1. Within 14 days from the publication of these reasons, any applicant for costs (costs applicant) is to file and serve any application for costs (costs application) which is to include any evidence and submissions. 2. Within 28 days from the publication of these reasons, the respondent to the costs application is to file and serve any evidence and submissions in reply. 3. Within 35 days from the publication of these reasons, the costs applicant is to file and serve any submissions in reply. This

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

Amendments 14 October 2024 - para 16 - added "19" and deleted "that is, the challenge to order 19 was not pursued Para 18 - "MFI one" changed to "MFI 1" Para 36 - "the" added Para 75(1) - "of" added into 2nd line Para 82 - "in" changed to "an" Para 134 - "reasons" changed to "decision" Para 179 - "re" changed to "are" Para 261 - "appellant" changed to "respondent" Para 264 - "the" added Para 299 - "respondent" changed to "appellant" Para 324 - deleted "would appear to apply to" and added "includes" Para 330 - "the Tribunal" deleted from 2nd line Para 334 - deleted "saving" and added "save in" 14 October 2024 - date on coversheet 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: 14 October 2024

Community Land Development Act 1989(NSW)

Community Land Management Act 1989(NSW)

Tenancy Tribunal Act 2001(NSW)

Strata Schemes (Freehold Development) Act 1973(NSW)

Strata Schemes Management Act 1996(NSW)

CLDA) and Community Land Management Act 2021(NSW)

Administrative Decisions Tribunal Act 1997(NSW)

Compensation Court Act 1984(NSW)

(2020) 103 NSW LR 36

Community Association DP 270244 v The Owners - Strata Plan 69205

At a glance

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Legislation Cited (18)

Cases Cited (58)

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