Frangos v Theodore [2025] NSWCATAP 126 | Case summary

Frangos v Theodore [2025] NSWCATAP 126 | Case summary | Zoe

Parties

Applicant/Plaintiff:

Frangos

Respondent/Defendant:

Theodore [2025] NSWCATAP 126

Legislation Cited (3)

Administrative Tribunal Act 2013

Administrative Tribunal Rules 2014

Schemes Management Act 2015

Cases Cited (7)

Internal appeals may be made either (1) as of right on a question of law, or (2) with leave (that is, the permission) of the Appeal Panel: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) and in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Cusumano) the question of what constitutes a question of law was considered.
A pure question of law does not depend on the facts found and the question of law must be, self-evidently, a question of law and not depend on the answer. A question of law is distinct from a mixed question of fact and law, for which leave to appeal is required. Examples of questions of law include the matters set out in Prendergast at [13] and Cusumano at [32].
A failure to provide procedural fairness at a hearing would, if established, be a matter that raises a question of law.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 to the NCAT Act.
In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

In Collins v Urban [2014] NSWCATAP 17 (Collins), at [76], it was said that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:

The relevant legal principes of procedural fairness were recently set out in YKW v Public Guardian [2025] NSWCATAP 112 at [69]- [71], case citations omitted:

The last sentence just quoted reflects the practical reality that there is no utility in allowing an appeal and remitting an application for redetermination unless there is "a realistic possibility that the decision that was made in fact could have been different if the error had not occurred": LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [7].
Further, as was said in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 at [25]: "The application of principles of procedural fairness in a particular case must always be moulded to the particular circumstances of that case."

Another matter raised in oral submissions in relation to the hearing was that the respondents relied on 189 pages of documents, which included a 28-page affidavit. However, the appellant had those documents well prior to the hearing and was provided with an opportunity to respond to them with whatever documents she wished to rely upon and submissions she wished to make, both prior to and during the hearing at first instance. We are not persuaded that that aspect of the proceeding involved any lack of procedural fairness.
It was not until during the hearing of the appeal that it was asserted there was a lack of procedural fairness due to the directions made on 20 June 2024. The appellant was not entitled to rely on that ground without obtaining leave (i.e. permission) to amend the grounds of her appeal. Ironically, that is because there would be a lack of procedural fairness if the appellant was permitted to rely on that additional ground without prior notice to the respondents.
However, even if leave to add that ground had been sought and obtained, we are not persuaded there was any lack of procedural unfairness arising from the directions made on 20 June 2024 for the following reasons.
First, since it is common to only make directions for documents to be provided by the applicant and respondent and not to include provision for documents in reply. Secondly, since it is common for evidence in reply to only indicate what is and what is not in dispute, which is commonly done during the hearing. Thirdly, when the compulsory appointment of a strata managing agent is sought, it is difficult to see the utility of evidence in reply, which would either agree with a matter said to provide support for such an appointment or disagree with a matter that serves to highlight the extent of the dispute between the parties, thereby providing support for the appointment.
Even if either, or both, those claims of a lack of procedural fairness were considered to be established, there was clear and ample evidence to warrant the order that was made and it cannot be said that there was a realistic possibility that the decision could have been different if there had been no lack of procedural fairness. Hence, we are not persuaded any such error could be said to be material to the first instance decision: it is sufficiently clear that, if there was a rehearing, the same orders would be made.
In relation to this ground, and the remaining grounds (which each require leave) there is no utility in delving into the details of the claims and denials, since an appeal does not provide an opportunity to re-run the first instance hearing. (Ryan v BKB Motor Vehicle Repairs Pty Ltd at )

In the Notice of Appeal, this ground raised two points. First, the time afforded to the parties during the first instance hearing, which is a matter already considered and rejected. Secondly, it was suggested that the time between the application being lodged, in April 2024, and determined, in December 2024, was not in accordance with "the NCAT policy of inexpensive and timely". The appellant was unable to point to any unfairness in the way the proceedings have been conducted or some other denial of procedural fairness in the time taken to finalise these applications (Dhorajiwala PCT Pty Ltd v Peacock [2022] NSWCATAP 313 at [39]). We are not persuaded the decisions was not fair and equitable.

The matters raised in the Notice of Appeal did not appear to be significant new evidence as considered by the Appeal Panel in Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 at [108-109]. Indeed, what was written under this heading provided support for the order that was made at first instance by (1) accepting that the lot owners are in dispute, and (2) suggesting that the police have been called on five occasions. We are not persuaded significant new evidence has arisen that was not reasonably available at the time the proceedings under appeal were being dealt with.

Frangos v Theodore

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (3 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (7)