Evans v The Owners – Strata Plan No. 40841

(1) a claim that there has been a breach by The Owners - Strata Plan No. 40841 (the respondent) of its obligation imposed by s 106(1) of the Strata Schemes Management Act 2015 (the SSMA) to repair and maintain the common property,

(2) if there had been such a breach, whether a work order should be made,

(3) if there had been such a breach, whether Ms Evans was entitled to be awarded damages under s 106(5) of the SSMA, and

(4) whether a compulsory strata managing agent should be appointed under s 237 of the SSMA.

1. Following a hearing, on 5 January 2024 the Tribunal dismissed the application because:

(1) no breach of the duty to maintain and repair common property had been established,

(2) no work order could be made,

(3) the claim for damages was out of time, and

(4) that, in the exercise of the Tribunal's discretion, a compulsory strata managing agent should not be appointed.

1. On 3 April 2024 the Tribunal made an order that Ms Evans pay the respondent's costs, on the ordinary basis, as agreed or as assessed. On 1 May 2024 Ms Evans lodged this appeal against both the substantive decision of 5 January 2024 and the costs decision of 3 April 2024. The rules of the Tribunal require that, in an appeal of the present kind, the appeal is to be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed from: r 25(4)(c) Civil and Administrative Tribunal Rules 2014 (NCAT Rules). Ms Evans acknowledges that the appeal in respect of the substantive decision is out of time.
2. The application before the Tribunal raised issues about damaged skylights, noise and fire risk from an exhaust fan which extracts fumes from the commercial kitchen in Lot 1, issues about storage of gas cylinders, the maintenance of balcony balustrades, the installation of a roller door, the failure to hold annual general meetings and the failure to provide books and records for the strata scheme. The appeal, however, is limited to the issue of the exhaust fan and the appointment of a compulsory strata managing agent.

1. As the appeal is limited to the issue of the exhaust fan and the compulsory appointment, only those parts of the Tribunal's decision dealing with those issues are referred to.
2. After identifying the issues in Ms Evans's application and setting out the procedural history, the Senior Member who decided the matter set out in some detail the relevant legislative provisions and case law. He then summarised the evidence before him in relation to the issues raised.
3. The Senior Member first addressed the question of whether, if a breach of s 106(1) of the SSMA could be established, a work order could be made. In relation to the exhaust fan, the Senior Member addressed the reports of the experts engaged by Ms Evans who dealt with this issue, a summary of which had been provided earlier in his reasons.
4. The first expert was Mr Vavrica, an architect who had not inspected the lots but based his reports on documents given to him by another witness for Ms Evans, Mr Kozlowski, a building consultant. In his report Mr Vavrica raised issues in relation to four items, including the exhaust fan. The Senior Member stated that Mr Vavrica only raised issues of whether there had been compliance in relation to various matters (and not to the form of any work order). He gave as an example Mr Vavrica's comments with respect to the storage of LGP cylinders and stated that the report was not sufficient to enable the Tribunal to make an order for work to be carried out. We understand this comment also extended to the kitchen exhaust fan and other issues considered by Mr Vavrica.
5. The second expert was Mr Weiss, a mechanical engineer who inspected the building in July 2016 and provided a report dated 24 November 2023. In his report Mr Weiss had raised issues with the kitchen exhaust ducting being undersized, excessive fan noise and the fire rating of the ducting. He had proposed two methods of rectification, both of which involved removal of the existing kitchen exhaust system. The Senior Member stated that, even if Mr Weiss's evidence was adopted, there was no clarity about which option should be adopted and therefore what work order could be made.
6. Mr Wren, the third expert, a fire engineer, provided a report based primarily on documentation provided to him without inspecting the building. In his opinion the kitchen exhaust ducting from Lot 1 through Lot 3 is "non-compliant construction & poses a fire hazard". He also stated that there "appears to be inadequate fire protection" between Lots 1 and 3 and stated that with respect to the adequacy of the ducting, significant invasive inspection was required. The Senior Member stated that, as Mr Wren was of the opinion further investigation was needed, there is a lack of clarity as to what, if anything, is required.
7. The Senior Member then referred to the evidence of Mr Kozlowski contained in a report dated 20 February 2023. The Senior Member noted that Mr Kozlowski's opinion was that the exhaust fan did not comply with the 10 February 1988 development consent, but the approved plans which had been provided to the Tribunal contradicted that claim. Secondly, Mr Kozlowski suggested a fire risk from the exhaust fan but has no specialist qualifications in this regard and, thirdly, expressed an opinion about acoustics based upon a report which was not included in his own report. The Senior Member then stated that, in any event, Mr Kozlowski provided no scope of works which could form the basis of a work order.
8. Lastly, the Senior Member referred to a report by Mr Washer, an acoustics consultant, who measured noise emitted by the exhaust fan which was said to be located on the roof of the building. Mr Washer stated that the noise levels were above recommended levels and recommended a review be undertaken of the existing kitchen exhaust fan and "options for additional treatment be provided for the review of the strata committee".
9. The Senior Member noted there was nothing in the evidence or submissions to suggest the form of any work order, and concluded that no work order based on any breach of s 106(1) of the SSMA could be justified.
10. After dealing with a claim for damages which is not relevant to this appeal, the Tribunal turned to whether any of the eight matters raised in Ms Evans's submissions established a breach or breaches of s 106(1) of the SSMA and, if so, whether that breach/those breaches provided the basis for the appointment of a compulsory strata managing agent under s 237 of the SSMA.
11. In relation to the kitchen exhaust fan, the Senior Member first dealt with the noise issue. He noted that the evidence at times conflated three issues: first, the location of the kitchen exhaust duct, which passes through Lot 3; secondly, the fire protection of that duct; and, thirdly, the noise from the exhaust fan. As to the first of those issues the Senior Member stated that, while Mr Vavrica suggested there is no valid building approval for the installation of the kitchen exhaust fan, the respondent provided approved plans which contradict that claim.
12. In relation to the noise issue, the Senior Member stated that Ms Evans's case was that an acoustics report was obtained in June 2012 and again in March 2023. Both reports contained the same measurements for the study, bedroom, and balcony. The respondent noted that the 30 June 2016 AGM resolved to engage Engineering Partners (Mr Weiss) to address this issue and Mr Weiss sent an email on 17 October 2017 in relation to this. The Senior Member noted that the respondent's position was expressed in its submissions to the Tribunal as follows:

Thus we currently propose the following:

1. We use the existing system.

2. Replace the old noisy fan with a new modern quieter above roof mounted fan, which the engineer will select.

3. We add some material under the roof sheeting to stop direct noise travel through the roof.

4. Also investigate the ducting or layering of the boxing in [the applicant's] apartment to see whether noise can be further reduced. And whether the boxing material is fire rated.

1. The Senior Member noted that the respondent's submissions also suggested Ms Evans had hindered access and has raised the question of who is responsible for any rectification of the duct. He then stated that, even if allowance is made for those matters, there was no adequate explanation for the failure to progress this matter over a period of more than seven years since the 17 October 2017 email to Mr Weiss, noting that email was sent more than a year after the 2016 AGM.
2. The Senior Member then concluded that the delay was such as would provide a basis for a finding that there has been a breach of s 106(1) but for the fact that the goal in reducing the noise from the exhaust fan did not involve maintaining that fan in its existing condition or repairing any damage to the fan. Instead, as with the skylights, this issue presented as reflecting the applicant's desire for an improvement. The reference to the skylights was a reference to repair to skylights following a storm where the Tribunal concluded that Ms Evans sought to have the damaged skylight replaced by a better model.
3. In that context the Senior Member referred to the Supreme Court's judgment in Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 (Glenquarry). The Senior Member referred in particular to [111] of the judgment where the Court observed that, in making an order that an owners corporation had failed to comply with its obligations to repair and maintain common property, the Tribunal's order "could go no further than the minimum necessary to comply with that obligation".
4. The Tribunal then addressed Ms Evans's complaints that the respondent had failed to act on inadequate fire protection and thus the fire risk in relation to the ducting between Lot 1 and the roof, via Lot 3.
5. The Senior Member stated that Ms Evans's case was based on reports obtained after the Tribunal proceedings were commenced on 29 January 2023, as reflected in the submissions on this topic which referred to a 22 November 2023 report of Mr Wren which suggested the Building Code of Australia required separate, fire-isolated compartments for the ducting. The Senior Member noted that that report had not been provided to the respondent until shortly prior to the hearing and not provided within the time frame set by orders of the Tribunal. The Senior Member also stated that the submissions referred to Mr Wren's earlier report, dated 19 May 2023, which suggested that plasterboard fitted against the ducting does not have the requisite fire rating.
6. The Senior Member then referred to an affidavit by Ms Evans in which she stated that on 7 April 2023 the respondent resolved to engage a fire certifier to investigate this compliance issue. He stated that he was unable to verify that claim as a copy of the minutes of that meeting did not accompany that affidavit.
7. The Tribunal then stated that the respondent could not be expected to respond to a matter raised in a report dated 22 November 2023 that was not provided to it until shortly before the hearing. As to the reliance on a report dated 19 May 2023, the Senior Member noted that Ms Evans's evidence suggested that the respondent had already resolved, more than a month earlier, to investigate that issue and it is unrealistic to expect that issue to have been resolved with finality prior to the completion of these proceedings.
8. The Senior Member stated that, in these circumstances, the evidence did not justify a finding of any breach of s 106(1) in relation to this issue as Ms Evans's submissions did not suggest that the respondent was put on notice prior to 19 May 2013, and there did not appear to have been any failure to act since the respondent resolved, on 7 April 2023, to have an appropriate expert investigate this matter.
9. As to whether a compulsory strata managing agent should be appointed under s 237 of the SSMA, the Senior Member referred to the four circumstances set out in s 237(3) which could lead the Tribunal to be satisfied that such an order should be made. Having already determined that the respondent was not in breach of its obligations under s 106(1) or other obligations not relevant to the appeal, the Senior Member stated that an order could only be made if it was established that:

(a) the strata scheme was not functioning satisfactorily; and

(b) the Tribunal's discretion should be exercised in favour of making the order sought.

1. Bearing in mind that the decision was based upon all matters raised by Ms Evans in her application, the Senior Member went on to find that:

(1) There had been delays which could suggest the strata scheme is not functioning satisfactorily;

(2) The respondent had been the cause of some but not all of those delays;

(3) The current strata manager is aware of her role and responsibilities;

(4) An experienced building consultant had been appointed as a project manager for a capital works program;

(5) The matters requiring attention are now being adequately addressed; and

(6) As not all matters can be addressed immediately, it is necessary to schedule and prioritise those matters.

1. The Senior Member, with reference to Foong v Scutella [2021] NSWCATAP 225, held that the matters referred to by Ms Evans did not provide a sufficient basis for a conclusion that the strata scheme the subject of the proceedings is not functioning satisfactorily. The Tribunal went on to state that, even if it was satisfied that the strata scheme has not functioned satisfactorily, the Tribunal was satisfied that it is now functioning satisfactorily and, in the exercise of its discretion, was not satisfied that in order for the compulsory appointment of a strata managing agent should be made.

1. In its decision of 5 January 2025 the Tribunal dismissed Ms Evans's substantive application on all bases that had been argued. The parties then provided submissions on costs. Ms Evans's position was that each party should pay their own costs. The respondent claimed its costs of the proceedings and submitted that costs should be awarded on an indemnity basis.
2. In the costs decision, the Senior Member summarised the submissions of both parties and set out in detail the relevant legal principles and cases applying to an award of costs in the Tribunal. He determined that:

(1) costs were governed by r 38 of the Civil and Administrative Tribunal Rules 2014 and not s 60 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) as Ms Evans in her claim for damages had sought an amount in excess of $30,000;

(2) there had been no conduct on the part of the respondent that warranted a finding of disentitling conduct; and

(3) the conduct of the applicant was not such as to justify an order for costs on an indemnity basis.

1. The Tribunal ordered Ms Evans to pay the respondent's costs, on an ordinary basis, as agreed or as assessed.

1. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) of the NCAT Act.
2. As set out in Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30 at [21]- [23]):

There are several important cases relevant to the construction of s 80 of the NCAT Act. These were recently referred to in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25].

The Appeal Panel there said, inter alia, that:

(1) Absent leave to appeal, the question of law is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Medical Council of New South Wales v Mooney [2024] NSWCA 180 (Mooney) at [97].

(2) The question of law should be articulated with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Kudrynski v Orange City Council [2024] NSWCA 33 at [48], Mooney at [97], Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [28].

(3) A question of law means a pure question of law: Wilson v Chan & Naylor Parramatta Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11].

(4) A "pure question of law" does not depend on facts not found: Orr v Cobar Management Pty Ltd [2020] NSWCCA 2020 at [48] and [109].

(5) A mixed question of fact and law is not a question of law: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWCA 734 at [39].

(6) An appeal is "on" any question of law: s 80(2) of the NCAT Act. The question of law must not be hypothetical or arid: Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353-354; [1990] HCA 33.

(7) An appeal is against orders and not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34], Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259]. Therefore, the question of law must be capable of affecting the orders the subject of the appeal.

1. Recently in Donohoe v Albulario [2025] NSWSC 9 Basten AJ stated that in construing the phrase "question of law" statements of principles are less likely to be of assistance than close attention to the nature of the issue identified by the appellant and the statutory context in which the appeal arises: at [30]. Relevantly, he stated that the specific question of law which arose in the proceedings must be identified. Furthermore, the question of law must be one which gives rise to an error in the sense that there is a causal or dispositive connection between the legal issues sought to be raised and the outcome of the case: at [31] - [32].
2. In the case of an appeal from the Consumer and Commercial Division of the Tribunal, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 of Sch 4 to the NCAT Act on the basis that:

.....the appellant may have suffered a substantial miscarriage of justice because:

(a) the decision of the Tribunal under appeal was not fair and equitable, or

(b) the decision of the Tribunal under appeal was against the weight of evidence, or

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)

1. Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion to grant leave which will generally only be exercised in the following circumstances: see Collins v Urban [2014] NSWCATAP 17 at [84(2)]:

Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,

1. An appellant has to demonstrate that either an error was made on a question of law, or that leave to appeal should be granted. It is not sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome: see Brahmbhatt v Osorio [2023] NSWCATAP 188 at [28]. Nor does an appeal provide a losing party with the opportunity to run its case again: see Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].

1. An internal appeal must have been lodged within 28 days of being notified of the Tribunal decision: r 25(4(c) NCAT Rules. The decision in the substantive application was made on 5 January 2024 and the parties were notified that day. The costs decision was made on 3 April 2024. The appeal in relation to both decisions was lodged on 1 May 2024. The appeal in relation to the substantive decision is therefore out of time. Ms Evans seeks an extension of time under s 41 of the Civil and Administrative Tribunal Act 2013.

1. Ms Evan's relies upon the following grounds of appeal:

(1) the Tribunal erred in failing to find that the noise emanating from the exhaust fan did not fall within the respondent's obligation to properly maintain and keep in a state of good and serviceable repair the common property;

(2) the Tribunal erred in finding that the respondent was not on notice prior to the commencement of the proceedings regarding the fire danger from the exhaust fan;

(3) the Tribunal erred in failing to find that the respondent's failure to properly maintain and keep in a state of good and serviceable repair the exhaust fan, which was a breach of s 106(1) of the SSMA;

(4) the Tribunal erred in finding that there was no work order for the repairs to the exhaust fan;

(5) the Tribunal erred in refusing to make orders for the appointment of a compulsory strata manager to complete the works; and

(6) the Tribunal erred in ordering the appellant pay the respondent's costs.

1. We will deal with each of the grounds in turn before turning to the question of whether time should be extended to make the appeal.

1. This ground of appeal is that the Tribunal erred in failing to find that the noise from the exhaust fan fell within the respondent's obligations to repair and maintain common property. Ms Evans submits that the Tribunal applied a wrong principle of law in finding that the goal of reducing the noise from the exhaust fan does not involve maintaining that fan in its existing condition or repairing any damage to the fan. As such, Ms Evans states the ground involves an error on a question of law and she may therefore appeal as of right.
2. Ms Evans refers to The Owners Strata Plan SP 20211 v Rosenthal; Rosenthal v The Owners Strata Plan SP 20211 [2018] NSWCATAP 243 where the Appeal Panel summarised the relevant principles arising from the decision of Brereton J in [35] Seiwa Australian Ply Ltd v Owners Straw Plan 25042 [2006] NSWSC 1157. The Appeal Panel noted that the provisions in s 106 of the SSMA are the same as those in the predecessor legislation which was referred to in Seiwa (s 62 of the earlier Act). Brereton J stated:

3 ..... Section 62(1) imposes on an owners corporation a duty to maintain, and keep in a state of good and serviceable repair, the common property. That duty is not one to use reasonable care to maintain and keep in good repair the common property, nor one to use best endeavours to do so, nor one to take reasonable steps to do so, but a strict duty to maintain and keep in repair.

4 The duty to maintain involves an obligation to keep the thing in proper order by acts of maintenance before it falls out of condition, in a state which enables it to serve the purpose for which it exists [Hamilton v National Coal Board [1960] AC 633, 647 (Lord Keith of Avonholm); Haydon v Kent County Council [1978] QB 433, 464 (Shaw LJ); Ridis v Strata Plan 10308 [2005] NSWCA 246, [161]]. Thus the body corporate is obliged not only to attend to cases where there is a malfunction, but also to take preventative measures to ensure that there not be a malfunction [Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Limited (1989) 18 NSWLR 33 (Young J); Ridis, [162]-[163]]. The duty extends to require remediation of defects in the original construction of the common property [Proprietors Strata Plan No. 6522 v Furney [1976] 1 NSWLR 412, 416 (Needham J); Ridis [164]-[165]]. And it extends to oblige the owners corporation to do things which could not be for the benefit of the proprietors as a whole or even a majority of them [Proprietors Strata Plan 159 v Blake (1986) CCH Strata Titles Cases 30-068 (Yeldham J); Ridis, [166]].

5 It follows that as soon as something in the common property is no longer operating effectively or at all, or has fallen into disrepair, there has been a breach of the s 62 duty. [emphasis added]

1. Ms Evans also refers to Ridis v Strata Plan 10308 [2005] NSWCA 246 where at [158] McColl JA stated that the obligations of maintenance and repair in s 62(1) (now s 106(1)) are directed to keeping the common property operational and to restoring something which is defective.
2. Ms Evans states that the uncontradicted evidence in the two acoustic reports that were before the Tribunal is that the internal and external noise levels from the exhaust fan exceed the Australian Standard. She states that the respondent has been on notice of this for over 10 years. She also states that there was no evidence before the Tribunal that the exhaust fan was emitting excessive noise when it was installed and, in any event, even if the defect was present when the fan was installed, the respondent still had an obligation to repair it.
3. Ms Evans also refers to an invoice from an electrician dated 2 May 2011 in which he states that, among other things, he inspected the roof exhaust fan. He observed that "the outside noise generated by the fan motor is marginally more than it was when replaced in November 2009". She also notes that in his March 2023 report Mr Washer stated that the noise levels were the result of a potential defect associated with the fan. Ms Evans also refers to the report by Mr Weiss, the mechanical engineer, dated 22 November 2023 in which he states that the ducting connecting the exhaust hood in the commercial kitchen to the exhaust fan on the roof is too small for the required airflow. In his opinion, this can result in greater noise emanating from the ducting and causes the fan to run faster which can also lead to additional noise.
4. In his decision the Senior Member set out the established principles relating to the s 106 duty of an owners corporation and referred to the relevant cases, including Seiwa. The Senior Member referred to the acoustics reports obtained in June 2012 and March 2023. He noted that both reports contained the same measurements for noise levels in the study, bedroom and balcony of Lot 3. The Senior Member referred in more detail to the March 2023 report of Mr Washer and the noise levels measured by him. The Senior Member stated that Mr Washer made suggestions as to how those noise levels might be reduced and recommended that "a review be undertaken of the existing kitchen exhaust fan located on the rooftop, and options for additional treatment be provided for the review of the strata committee".
5. The evidence shows that issues with the noise of the fan were raised as far back as 2011. As the Senior Member stated, the delay by the respondent in dealing with issues relating to the noise could provide a basis for finding that there has been a breach of s 106(1). Such a breach, however, is reliant on there being an original defect in the fan or that it is no longer operating effectively, or has fallen into disrepair.
6. The submissions of Ms Evans in relation to this ground are somewhat unclear. She seems to argue that the Senior Member erred by not considering that the exhaust fan was defective from the date of installation, although states there is no evidence of that. She then seems to state that the Senior Member should have found that the fan was no longer operating effectively and that the owners corporation was therefore required to repair or replace it. In general, Ms Evans appears to argue that the Tribunal made a wrong factual finding rather than that it applied a wrong principle of law. In those circumstances, leave to appeal would be required.
7. It seems to have been accepted by all, including the Tribunal, that the kitchen exhaust fan is noisy and does not comply with the current Australian Standard. As noted by the respondent, there has not been any Council or Tribunal notice that would require the respondent to replace the fan. We have not been referred to any evidence which was before the Tribunal that non-compliance with the current relevant Australian Standard means that the relevant equipment is itself therefore defective or that it was defective at the time of installation. Other than the fact that the fan is noisy there is no evidence that it has fallen into disrepair or is not operating effectively.
8. The respondent states in its submissions on the appeal, there was no evidence presented to the Tribunal that the exhaust fan does not do what it is supposed to do which is to remove air and odours from the kitchen. It is rightly conceded by the respondent that, if the equipment is replaced, it must be brought up to today's relevant standards.
9. Ms Evans submits that Mr Weiss's report dated 22 November 2023 established that the noise is caused by an exhaust fan that is too small for the commercial kitchen on the ground floor. A proper reading of Mr Weiss's report, however, shows that what he in fact states is that the ducting connecting the exhaust hood in the commercial kitchen to the exhaust fan on the roof is too small for the required airflow. He simply states that "undersized ducting can result in greater noise emanating from the ducting" and that undersize ducting "typically requires the fan to be either larger or to run faster ... which can also lead to additional fan noise". His views are by no means conclusive.
10. At the hearing of the appeal, counsel for Ms Evans stated that, as the kitchen in the commercial premises expanded, the ducting was no longer suitable for the required new airflow. He acknowledged that there was a new use of the ducting and fan but stated that, as the respondent approved the kitchen, once the new kitchen went in, it caused the defect because the ducting lacked capacity. Counsel did not point to any evidence concerning changes to the kitchen or approvals by the respondent. It is also not clear whether that evidence or submissions in relation to it were put before the Tribunal.
11. While the Senior Member did not refer in particular to whether the fan was defective, we note he set out the correct legal principle at [10] concerning the owners corporation's responsibility to repair any defects in the original construction of the common property. We have not been provided with a copy of any written submissions made by Ms Evans to the Tribunal and the only mention in oral submissions to the Tribunal which may be seen to relate to the issue of whether the fan was defective at installation concerns the Australian Standard (which we have dealt with above). While counsel made certain submissions on the appeal in relation to the size of the ducting and fan, we are not satisfied that those submissions are supported by evidence or were squarely put before the Tribunal in any event.
12. We find no error in the Senior Member's conclusion that the goal in reducing the noise from the fan does not involve maintaining the fan in existing condition or repairing any damage to the fan (or, indeed, as it relates to any defect in the fan). Rather, what is being sought is to replace the existing exhaust fan with an improvement.

1. This ground is that the Tribunal erred in finding that the respondent was not on notice prior to the commencement of the proceedings regarding the fire danger from the exhaust fan. We note that, as the Senior Member stated, the fire issue in fact relates to the ducting, not the exhaust fan itself.
2. The Tribunal found that Ms Evans's case concerning the fire danger was based on reports obtained in May and November 2023 when the proceedings were commenced in January of that year. Ms Evans submits that the Tribunal's finding that the issue had not been raised by her with the respondent prior to the commencement of the proceedings was an error. She submits that to the extent she requires leave in respect of this ground of appeal, the finding that the issue was not raised prior to the commencement of the proceedings was unreasonably arrived at and clearly mistaken.
3. Ms Evans refers to a letter dated 27 May 2011 from her then solicitor to the respondent's then solicitor in which "concerns" were expressed that the exhaust fan was not adequately fire rated and the fire separation between the lots had been breached. The primary focus of the letter concerned whether the ducting formed part of the common property with Ms Evans contending that it did not and was an illegal construction on her lot property. There was a passing reference to "fire protection controls" in further correspondence from Ms Evans's then solicitor on 15 July 2011. That correspondence also asserted that the ducting was not common property and dealt with a proposal to move the ducting and fan.
4. Ms Evans relies on this correspondence as notification to the respondent of the fire risk issue. She states that there is no obligation on a lot owner to either continuously complain about common property that an owners corporation is required to maintain and keep in a statement of good and serviceable repair nor is there any limitation period between the complaint and when a lot owner may commence proceedings.
5. In his decision the Senior Member did not accept that there was a breach of s 106(1) of the SSMA in relation to this issue as Ms Evans's submissions did not suggest that the respondent was put on notice of the issue prior to 19 May 2023, a reference to the first report of Mr Wren. The submissions of the respondent on the appeal have not referred to any submission that was made to the Senior Member that the respondent was on notice of any fire issue well prior to the Tribunal proceedings.
6. Furthermore, we have not been provided with a copy of any written submissions made by either party before the Tribunal where it was stated that the owners corporation was on notice as far back as 2011 of any fire risk issue. In oral submissions to the Tribunal, counsel for Ms Evans referred to the fire issue and stated that the first mention of it was in the Minutes of the Annual General Meeting dated 19 July 2018. Those minutes, however, simply record that the owners resolved at the meeting to obtain an Annual Fire Safety Statement. There is no mention of the ducting or the fan or any particular fire risk. The only evidence given at the hearing in relation to fire risk was by the present strata manager, Ms Gawne, who, when cross-examined about when she became aware of any fire issue, stated it was during the Tribunal proceedings.
7. From the above, we cannot be satisfied that any evidence or submissions about prior notice of fire risk issues were part of Ms Evans's case put before the Tribunal. We also note that the Senior Member advised the parties that, in circumstances where he had been provided with some 4,000 pages of documents, if there was particular evidence or documents the parties relied upon as being relevant to their case, they needed to have been raised in cross examination or referred to. There is nothing before us to indicate that the material now sought to be relied upon was drawn to the Senior Member's attention or referred to at all during the hearing or submissions. We are not satisfied that the Senior Member was obliged to go looking for evidence in the bundles of material provided to establish a point which was not squarely raised.
8. In any event, even if we were of the view that the letters referred to should have been mentioned by the Senior Member, we are not satisfied that they constitute proper notice of a defect in the common property. While Ms Evans is correct that there is no obligation on a lot owner to make continuous complaints about common property, that does not mean that a passing reference to an issue in correspondence between lawyers constitutes notice. The correspondence in question did no more than express a concern about a possible fire risk without any evidence to support that concern.
9. If we are wrong and the letters could be said to constitute notice to the owners corporation of a defect in the common property such that the delay by the respondent in dealing with this issue could provide a basis for finding that there has been a breach of s 106(1), we would not, however, grant leave to appeal on this ground. We are not satisfied that any issue of principle or matter of public importance arises from what may be termed a factual error, nor are we satisfied that any factual error was unreasonably arrived at, given the state of the evidence and the way the case was run. Furthermore, as the Senior Member noted in his decision, the respondent is now taking steps to investigate compliance and any remedial works in relation to the ducting. Little utility would be served by granting leave in respect of this ground.

1. This ground is that the Tribunal erred in failing to find that the respondent's failure to properly maintain and keep in a state of good and serviceable repair the exhaust fan, which was a breach of s 106(1) of the SSMA. Ms Evans argues that the excessive noise and the fire hazard are both matters that undoubtedly required the respondent's attention and action. She submits that the failure by the respondent to attend to the repair or maintenance was a breach of its obligations under s 106(1) and the Tribunal ought to have found such a breach.
2. In her submissions Ms Evans refers to the strict obligation imposed on an owners corporation by s 106 of the SSMA and makes reference to a number of authorities in this regard.
3. While Ms Evans submits that this ground is different to those in grounds 1 and 2, she has not stated why that is so. Ground 3, in our view, is answered by our conclusions with regard to grounds 1 and 2. As stated, the Tribunal did not err when it found there was no breach of s 106(1).

1. This ground is that the Tribunal erred in finding that there was no work order for the repairs to the exhaust fan.
2. The Senior Member found that, even if it could be said that there are breaches warranting a work order, no work order could be made as none of the evidence before him suggested the form of any such order.
3. Perhaps somewhat oddly the Senior Member dealt with the question of a work order before making findings as to breach. As he ultimately found there was no breach by the respondent of its obligations, no work order could in fact be made or needed to be considered. Nevertheless, we do not see any error in the factual conclusions arrived at by the Senior Member concerning the lack of evidence as to the scope of any work order which theoretically could be made.
4. Given our conclusions with respect to the Senior Member's findings on breach, we do not need to consider this ground further as no work order could or should be made.

1. Ms Evans submits that the Tribunal erred in refusing to make orders for the appointment of a compulsory strata manager to complete the works. In her submissions on the appeal Ms Evans argues that the Tribunal ought to have found that the owners corporation is not functioning satisfactorily or has failed to perform its duties or both: ss 237(3)(a) and 237(3)(c) of the SSMA. Part of this submission is predicated on the appeal being successful in relation to whether the owners corporation is in breach of its obligations under the SSMA. In essence Ms Evans argues that a strata manager should be appointed as the strata scheme is dysfunctional. The submission also seeks to raise matters that have occurred (or not occurred) since the Tribunal made its decision.
2. In his decision the Senior Member held that the matters referred to by Ms Evans did not provide a sufficient basis for a conclusion that the strata scheme the subject of the proceedings is not functioning satisfactorily. His decision on the vast majority of the matters upon which the application for a compulsory appointment was based has not been challenged by Ms Evans on appeal. She now seems to argue that, on the basis of the issues with the exhaust fan and ducting, the Tribunal should have appointed a strata manager. We have not accepted her submissions that the Tribunal erred in its conclusions that the respondent was not in breach of its obligations under s 106(1) with respect to the exhaust fan and ducting. Ms Evans has provided no cogent basis upon which the Senior Member's conclusion can be impugned.
3. The Tribunal in fact went on to consider whether a strata manager should be compulsorily appointed if it was satisfied that the strata scheme has not functioned satisfactorily. The Tribunal was satisfied that it is now functioning satisfactorily and, in the exercise of its discretion, was not satisfied that in order for the compulsory appointment of a strata managing agent should be made. In the appeal Ms Evans seeks to raise matters occurring after the decision was made but has not sought leave to submit new evidence and in fact has not provided any such evidence other than a few lines in her Counsel's submission.
4. If, what is intended is to argue that the exercise by the Tribunal of its discretion under s 237 of the SSMA miscarried, no submission has been made that would address that proposition. In particular, no submission has been made addressing the factors identified by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499 relevant to whether there has been a failure to properly exercise a discretion reposed in the Tribunal.
5. In any event, the Tribunal identified the reasons for why it decided that in the circumstances of this case, it was not satisfied that an order for the compulsory appointment of a strata managing agent should be made . The Tribunal considered the matters raised by Ms Evans and the respondent and the factors which it took into account were matters that were relevant to the exercise of its discretion. In our view, no error in the House v King sense arises from the Tribunal's decision. The result was not so unreasonable or plainly unjust as to warrant an inference that the discretion had not been properly exercised.

1. This ground is that the Tribunal erred in ordering Ms Evans to pay the respondent's costs. We assume, as no argument has been put forward for why the decision on costs was in error, that this ground is based on Ms Evans being successful in her other grounds of appeal.
2. We have not concluded that any of the grounds of appeal raised by Ms Evans have been made out, In those circumstances we do not consider that there is any reason to interfere with the costs decision made below. That decision was based on well-recognised principles which were properly applied.
3. We consider that the orders made by the Senior Member do not demonstrate any error on a question of law and were fair and equitable and were based on the weight of the evidence before the Tribunal. There is no basis for a grant of leave to be given and the appeal is dismissed.

1. As noted above, the appeal in relation to the substantive decision is out of time as the NCAT Rules provide that it must have been lodged within 28 days of being notified of the Tribunal decision. The application is some three months out of time.
2. The principles relating to consideration of an application to extend time are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. While the Tribunal has a broad discretion concerning the grant of an extension of time, the relevant factors in considering the exercise of the discretion are:

(a) the length of the delay;

(b) the reason for the delay;

(c) the applicant's prospects of success, in the sense that the applicant has a fairly arguable case;

(d) any prejudice suffered by the respondent; and

(e) whether strict compliance with the rules will work an injustice upon the applicant.

1. As was noted in Jackson at [18], in addition to exercising the discretion concerning the grant of an extension of time judicially, the Tribunal must also exercise the discretion having regard to the statutory command in s 36 of the Act that the guiding principle for the Act "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings".
2. The length of the delay, being some three months, is considerable. Ms Evans states that she waited until the costs decision was published as she was of the understanding that the matter was not finalised until the issue of costs was determined. It appears that, while represented at the Tribunal hearing, that representation then ceased and she was not represented until after she had filed her Notice of Appeal. She notes that she filed the appeal within 28 days of the costs order. We have some sympathy for that argument.
3. However, while Ms Evans argues that she has good prospects of success on the appeal, our conclusions above do not support that contention. The respondent has been put to considerable expense in arguing an appeal which has failed on all grounds. In those circumstances, it cannot be maintained that strict compliance with the rules will work an injustice upon Ms Evans.
4. The application for an extension of time is refused.

1. Both parties seek their costs of the appeal. In that regard we make the orders below.

(1) An extension of time to lodge the appeal is refused.

(2) Appeal dismissed.

(3) Costs of the appeal are to be determined as follows:

(a) Appellant to file with the Appeal Panel and serve on the respondent submissions on costs (no more than 5 pages) by 14 days from the date of this decision.

(b) Respondent to file with the Appeal Panel and serve on the appellant its submissions costs (no more than 5 pages) by 21 days from the date of this decision.

(c) The costs submissions of the parties are to identify whether an oral hearing on costs is sought, and if so, why.

(d) Subject to consideration of the costs submissions of the parties the Appeal Panel may determine the issue of costs on the papers and without a further oral hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.

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.