Garside v Coffey

Collins v Urban [2014] NSWCATAP 17

Commissioner of Police, New South Wales Police Force v Parish [2025] NSWCATAP 180

Hunter Development Corp v Save Our Rail NSW Inc (No 2) (2016) 93 NSWLR 704; [2016] NSWCA 375

Maxwell v Keun [1928] 1 KB 645

O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77

Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220

Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39

Pholi v Wearne [2014] NSWCATAP 78

Quo Warranto Pty Ltd v Goodman [2022] NSWCATAP 315

Sali v SPC Ltd (1993) 67 ALJR 841; [1993] HCA 47

Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139

Squire v Rogers [1979] FCA 48; (1979) 27 ALR 330; 39 FLR 106

Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners - Strata Plan No 64807 [2023] NSWCA 188

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Vickery v The Owners Strata Plan No 80412 (2020) 103 NSWLR 353; [2020] NSWCA 284

Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62

1. The appellants are owners of a townhouse being Lot 4 in a six-lot strata scheme. They made an application to the Tribunal seeking relief under the Strata Schemes Management Act 2015 (NSW) ("SSMA") which included an order requiring the owners of Lots 1 and 6 (the respondents) to engage a class 2 builder to assess, certify and bring alleged unauthorised works on those lots into compliance with Australian Building Codes, fire safety regulations and council regulations, with all costs to be borne by the owners of Lots 1 and 6. If the compliance and certification could not be achieved, the appellants sought that the unauthorised works be removed.
2. One of the jurisdictional bases for relief (as set out in the appellants' Points of Claim / submissions) was s 232 of the SSMA.
3. At the hearing, the respondent's solicitor (Mr Bannerman) forcefully and consistently submitted (effectively for the first time in the dispute) that the appellants' claim was one which could only be brought under s 132 of the SSMA and that the appellants had no standing for a claim under that provision as they were not the owners' corporation. Additionally, Mr Bannerman argued that the application was brought outside the limitation period for the claim and should have been brought 15 years prior when the unauthorised works were carried out.
4. On the basis of the submissions made by the respondent's solicitor, the Tribunal member explained to the appellants that the case would fail as they were not the owners' corporation and so they had no standing to bring the application.
5. At the hearing when faced with the new argument about standing, the appellants complained they did not have legal advice about this and required it. They made an application for an adjournment to obtain that legal assistance but the application was refused. When faced with the Tribunal telling them they had no standing, they later also sought an adjournment to join the owners' corporation but that was application was refused.
6. The appellants were encouraged to withdraw the application which they subsequently did on the basis of what the Tribunal had advised them about their standing and prospects.
7. The Tribunal made an order that the application was dismissed because the application was withdrawn. The appellants now appeal from that order.
8. We have decided that the appeal should be upheld on a question of law for the reasons that follow.

1. In the Notice of Appeal dated 25 March 2025, the appellants' ground of appeal was:

(1) The Tribunal erred in law by concluding the Applicants lacked standing based solely on Section 132 of the Strata Schemes Management Act 2015. The Tribunal did not alternatively consider that the Applicants had standing under Sections 232 (which had been included in the Applicant's written submissions (pg 11) and 241, which clearly give lot owners standing to seek orders relating to unauthorised works and by-law breaches. The Tribunal did not provide an opportunity to amend or clarify the application, leading the Applicants to withdraw on an incorrect legal basis.

1. The appellants also sought leave to appeal on the basis that the decision was not fair and equitable and against the weight of evidence - in that s 232 was not considered and despite the submissions addressing it, and the Tribunal failed to invite the self-represented appellants to clarify their argument in respect of s 232.
2. In their Amended Grounds of Appeal lodged on 13 May 2025, the appellants articulated their grounds as the following questions of law:

(1) Did the Tribunal err in law by failing to consider or apply Section 232 of the Strata Schemes Management Act 2015 (NSW), which permits individual lot owners to apply to the Tribunal for orders concerning disputes or complaints regarding the operation, administration, or enforcement of by-laws in a strata scheme - particularly when that provision was expressly relied upon the Appellants' written submissions dated 10 January 2025 (at page 10)? ("Ground 1")

(2) Did the Tribunal deny the Appellants procedural fairness by:

(a) Accepting substantive submission from the Respondents served only the night before the final hearing in breach of the Tribunal's directions;

(b) Allowing those submissions to raise a new legal argument (lack of standing under s 132 SSMA) without giving the Appellants sufficient time to respond;

(c) Refusing the Appellants' request for an adjournment to obtain legal advice or prepare a reply;

(d) Proceeding to determine the application based solely on that newly introduced legal ground.

(3) Did the Tribunal make a jurisdictional error by relying exclusively on section 132 of the SSMA (which applies only to enforcement applications brought by the Owners Corporation), while ignoring the alternative and applicable ground raised by the Appellants under section 232, which grants standing to individual lot owners in complaints and disputes of the kind raised in these proceedings? ("Ground 3")

(4) Did the Tribunal fail to discharge its legal duty to ensure procedural fairness after accepting the Respondents' late submissions, by failing to pause or adjourn the matter when it became clear that a new and determinative legal issue (s132 standing) was being raised for the first time - thereby preventing the Appellants, who were self-represented, from having a fair opportunity to respond or clarify their legal position? ("Ground 4")

1. As we apprehended the grounds of appeal, the refusal to grant an adjournment was an aspect of the alleged denial of procedural fairness, rather than a separate ground of appeal (which would require leave to appeal). Indeed, each of the grounds set out above, ultimately formed part of the basis for the overarching ground that there was a denial of procedural fairness.
2. The appellants also appeal from the costs orders subsequently made on 30 May 2025 requiring them to pay the respondents' costs ("costs decision"). Although a Notice of Appeal was not filed in respect of the costs decision, the appellants sought leave at the hearing for an extension of time to appeal that decision. As the appellants' and respondents' written submissions had addressed this issue; and the respondent did not object to the appeal being brought from the costs decision, we granted leave to appellants to include an appeal from the costs decision. However, the respondents objected to the additional grounds raised the day prior to the hearing in respect of that costs decision in part D1 onwards.
3. At the hearing of the appeal, the parties informed the Appeal Panel that the underlying issues in dispute between the parties had been resolved such that if the appeal was successful, there was no need to remit the matter for reconsideration (relief that was originally sought in the Notice of Appeal). The parties confirmed that the only controversy between them was the costs orders made under the costs decision. The respondents contended there was no utility for the appeal as the owners corporation had now filed their own proceedings and matters had significantly moved on from the position that was originally before the Tribunal below.

1. Section 132 of SSMA provides a means for an owners' corporation for a strata scheme to make an application to the Tribunal in respect of damages to common property or another lot as follows:

132 Rectification where work done by owner

(1) The Tribunal may, on application by an owners corporation for a strata scheme, make either of the following orders if the Tribunal is satisfied that work carried out by or for an owner or occupier on any part of the parcel of the scheme has caused damage to common property or another lot -

(a) an order that the owner or occupier performs the work or takes other steps as specified in the order to repair the damage,

(b) an order that the owner or occupier pay to the owners corporation or the owner of the lot a specified amount for the cost of repairs of the damage and any associated costs, including insurance and legal costs.

(2) An amount payable by an owner or occupier to an owners corporation under this section is payable, and may be recovered, under this Act as if it were an amount of unpaid contributions.

Note.

Section 86 provides for the recovery of unpaid contributions

1. Up until amendments to the SSMA that took effect from 1 July 2025, the time limit for bringing a claim under s 132 of the SSMA was 2 years from the date the owners' corporation became aware of works done by an owner. Although not relevant to this dispute, that period was extended on 1 July 2025 to a 6 year limitation.
2. An owners' corporation can make an application under s 147 of the SSMA for the imposition of a penalty for breach of a by-law.
3. Under SSMA, s 149, the Tribunal may make orders concerning common property rights by-laws on the application of an owner, owners' corporation or interested person. Section 149 provides:

149 Order with respect to common property rights by-laws

(1) The Tribunal may make an order prescribing a change to a by-law if the Tribunal finds -

(a) on application made by an owner of a lot in a strata scheme, that the owners corporation has unreasonably refused to make a common property rights by-law, or

(b) on application made by an owner or owners corporation, that an owner of a lot, or the lessor of a leasehold strata scheme, has unreasonably refused to consent to the terms of a proposed common property rights by-law, or to the proposed amendment or repeal of a common property rights by-law, or

(c) on application made by any interested person, that the conditions of a common property rights by-law relating to the maintenance or upkeep of any common property are unjust.

(2) In considering whether to make an order, the Tribunal must have regard to -

(a) the interests of all owners in the use and enjoyment of their lots and common property, and

(b) the rights and reasonable expectations of any owner deriving or anticipating a benefit under a common property rights by-law.

(3) The Tribunal must not determine an application by an owner on the ground that the owners corporation has unreasonably refused to make a common property rights by-law by an order prescribing the making of a by-law in terms to which the applicant or, in the case of a leasehold strata scheme, the lessor of the scheme is not prepared to consent.

(4) The Tribunal may determine that an owner has unreasonably refused consent even though the owner already has the exclusive use or privileges that are the subject of the proposed by-law.

(5) An order under this section, when recorded under section 246, has effect as if its terms were a by-law (but subject to any relevant order made by a superior court).

(6) An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order.

232 Orders to settle disputes or rectify complaints

(1) Orders relating to complaints and disputes. The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following -

(a) the operation, administration or management of a strata scheme under this Act,

(b) an agreement authorised or required to be entered into under this Act,

(c) an agreement appointing a strata managing agent or a building manager,

(d) an agreement between the owners corporation and an owner, mortgagee or covenant chargee of a lot in a strata scheme that relates to the scheme or a matter arising under the scheme,

(e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,

(f) an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act.

(2) Failure to exercise a function For the purposes of this section, an owner's corporation, strata committee or building management committee is taken not to have exercised a function if -

(a) it decides not to exercise the function, or

(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.

(3) Other proceedings and remedies A person is not entitled -

(a) to commence other proceedings in connection with the settlement of a dispute or complaint the subject of a current application by the person for an order under this section, or

(b) to make an application for an order under this section if the person has commenced, and not discontinued, proceedings in connection with the settlement of a dispute or complaint the subject of the application.

(4) Disputes involving management of part strata parcels The Tribunal must not make an order relating to a dispute involving the management of a strata scheme for a part strata parcel or the management of the building concerned or its site if -

(a) any applicable strata management statement prohibits the determination of disputes by the Tribunal under this Act, or

(b) any of the parties to the dispute fail to consent to its determination by the Tribunal.

(5) The Tribunal must not make an order relating to a dispute involving a matter to which a strata management statement applies that is inconsistent with the strata management statement.

(6) Disputes relating to consent to development applications The Tribunal must consider the interests of all the owners of lots in a strata scheme in the use and enjoyment of their lots and the common property in determining whether to make an order relating to a dispute concerning the failure of an owners corporation for a strata scheme to consent to the making of a development application under the Environmental Planning and Assessment Act 1979 relating to common property of the scheme.

(7) Excluded complaints and disputes This section does not apply to a complaint or dispute relating to an agreement that is not an agreement entered into under this Act, or the exercise of, or failure to exercise, a function conferred or imposed by or under any other Act, if another Act confers jurisdiction on another court or tribunal with respect to the subject-matter of the complaint or dispute and the Tribunal has no jurisdiction under a law (other than this Act) with respect to that subject-matter.

241 Tribunal may prohibit or direct taking of specific actions

The Tribunal may order any person the subject of an application for an order to do or refrain from doing a specified act in relation to a strata scheme.

1. Similarly to s 132, at the relevant time there was a 2 year time limit to bring that claim under s 232 and s 241.

1. The background to this dispute is somewhat complicated but it is necessary to set it out.
2. At the core of the dispute was whether some works performed by the respondents were authorised and what if any actions could be taken by the appellants.
3. The respondents are the owners of three-storey townhouses being lots 1 and 6 in the strata scheme. The third floor of each of these townhouses contains two large balconies, while the second floor has two smaller balconies.
4. The other four lots in the scheme are two-storey townhouses with one small balcony located on the second floor.
5. The appellants, residing in Lot 4 in the scheme, had put an application to the owners' corporation to construct an extension on top of their townhouse (effectively an outdoor terrace) similar to that on Lots 1 and 6 and had a private certifier approve the works. The respondents did not agree.
6. In the process of trying to resolve the issue, the appellants discovered that work done on lots 1 and 6 by the formers owners were allegedly unauthorised including the building of a fourth bedroom and a timber decking area ("unauthorised works"). The works did not have owners' corporation or council approval and it was contended there was financial inequity because lots 1 and 6 exclusively benefitted from the additional private-use common area while failing to contribute proportionately to strata levies or maintenance costs.
7. Relevantly, on 6 August 2024, the respondents filed a Strata and Community Scheme application against The Owners of Strata Plan No 75378 seeking a by-law for retrospective approval to carry out works to the common property balconies of the respondents' lots and effectively to authorise the unauthorised works. They brought a claim pursuant to, among other things, s 149 of the SSMA against a purported unreasonable refusal by the owners' corporation to approve a by-law.
8. On 21 November 2024, the appellants (together with the owners of two other lots in the strata plan) filed an application in the Tribunal. The orders sought in that application were for the imposition of a penalty for breach of a by-law; the removal of unauthorised works and to reinstate the common property to its original condition. No provisions in the SSMA were identified in that application.
9. On 10 December 2024 at the convened general meeting the respondents' blocked the appellants' proposed motion for approval of their works and a by-law that owners be financially responsible for private-use common property areas; and the respondents' proposed motions and by-laws were also blocked.
10. The directions hearing in the appellant's application was held on 18 December 2024. The Tribunal informed the appellant that they had no authority to seek a penalty order under s 147 of the SSMA as they were not the owners' corporation and orders were made for the exchange of Points of Claim setting out the relief they sought, Points of Defence and evidence. The Tribunal also joined the owners' corporation as an "interested party" to the proceeding so that it would have the opportunity to make submissions and be heard on any issues affecting the strata. The effect of this created some confusion for the appellants who indicated at the hearing before us that they thought this meant the owners' corporation had been joined as a party.
11. On 6 January 2025, the respondents filed an application with the Tribunal including (but not limited to) orders that their application be joined to the appellants' application; and "an order pursuant to s 149 of the SSMA that the by-laws in motions 12 and 13 on the agenda of the general meeting of [the owners corporation] held on 10 December 2024, are prescribed as changes to the by-laws ... and that these by-laws are to operate on and from the date of this order." This application is not the subject of the current appeal - it was never joined to the appellants' proceedings.
12. On 10 January 2025 the appellants filed their Points of Claim and submissions in which they made clear that the relevant provisions grounding the relief included s 232 of the SSMA.
13. Under the hearing "Detailed Submissions regarding unauthorised works and orders for compliance or removal" The appellants sought the following orders:

"1.Certification and compliance

That Lots 1 and 6 engage a Class 2 builder to assess, certify, and bring their unauthorized works into compliance with Australian Building Codes, fire safety regulations, council regulations

All costs for compliance and certification to be borne by Lots 1 and 6. Costs estimates are provided at Attachment 8 Costs Estimates Prepared by Class 2 builders and fire/structural engineers.

2. Restoration

In the event compliance cannot be achieved Lots 1 and 6 must:

...

3. Ongoing maintenance and accountability

Enforce the proposed by-law requiring lots owners to take responsibility for maintaining private-use property areas to avoid further financial burden on the Owners Corporation."

1. On 22 January 2025, the appellants and respondents participated in mediation. It was unsuccessful and the matter remained listed for hearing on 28 February 2025.
2. The respondents sought an adjournment of the hearing but that was unsuccessful. For reasons which are unexplained, no order was made by the Tribunal for the joining of the matters. At the hearing before us the respondents submitted that this was the basis upon which the orders for filing of a points of defence, submissions and evidence was not complied with by the respondents - because they thought the matters would be joined and an extension of time could then be sought.
3. Despite having an application for an adjournment refused, and no extension of time having been granted to file evidence, the appellants received the respondents' materials shortly before 7pm on the evening before the hearing. The evidence comprised, in the main, evidence the respondents had filed in their proceedings against the appellants but there was also a new statement by one of the owners which went to the knowledge the owners' corporation had of the works conducted on Lots 1 and 6.
4. The respondents also filed and served submissions which raised for the first time in the proceeding an issue about the standing of the appellants to bring an application purportedly made under s 132 of the SSMA. The appellants had not raised or relied on s 132 in their application.

1. We had before us the transcript of the hearing from the Tribunal below and the evidence and submissions filed in the proceeding.
2. In the Tribunal below, the appellants were self-represented. They objected to the respondents being legally represented. Mr Bannerman, who represented the respondents in the Tribunal below, explained that the matter was complicated; he was an expert in strata issues; and he could quickly and easily explain the issues and assist the Tribunal. The Tribunal gave him leave to represent the respondents while the appellants had no representation. The appellants expressed they: had little to no notice of the issue of standing that had been raised by the respondents the previous day together with evidence they had not been able to consider; felt they had not had time to review the materials the respondents had provided; but also did not want to delay the hearing and just wanted the issues resolved.
3. On our reading of the transcript, Mr Bannerman dominated the direction of the hearing by characterising the relief sought by the appellants as relief only available to an owners' corporation and not a lot owner. This was on the premise of his understanding that the appellants could only get the relief they sought under s 132 of the SSMA. He maintained that only the owners corporation could bring the application that the appellants had brought; and in any event, the application would be out of time by 15 years because that was how long ago the works were carried out on Lots 1 and 6 and if an application was to be made it should have been made 28 days after the works were done (ie in 2009). Ultimately, Mr Bannerman implored the Tribunal to just dismiss the appellants' application outright.
4. Mr Bannerman did not mention the relief sought by the appellants as articulated in the Points of Claim / submission under s 232 of the SSMA.
5. Faced with the dismissal application, the appellants confirmed that the primary relief they were seeking was for the respondents' unauthorised works to be certified. It was said those works were unauthorised under existing strata plan law not to undertake works without authorisation because approval had never been sought for those works. It was contended that if certification occurred, the owners' corporation would be able to consider the proposed by-law the respondents were seeking; and if certification did not occur, the unauthorised works should be removed including timber decking from the balcony. The appellants made clear that they ultimately did not wish for the removal of the structures on the respondents' lots but their main concern with unauthorised works was that it affected fire rating compliance and insurance and as a matter of fairness it should be resolved. The appellants confirmed that they did not seek the creation of a by-law but the respondents did in their application but first certification was required so that the by-law could be approved.
6. The Tribunal appeared somewhat confused about the scope of the orders sought, particularly in light of the submissions being made by Mr Bannerman about standing and sought clarification.
7. The appellants did not dispute that they were not the owners' corporation. But they noted that the Tribunal had previously joined the owners' corporation as an interested party; that the Chair of the owners' corporation was present at the hearing; and they thought this meant the owners' corporation were part of the proceeding.
8. The following exchange occurred adopting Mr Bannerman's characterisation of the claim;

"SM: ...the applicant must be an owner's corporation under Section 132. So that means any application using Section 132, which is the rectification where work is done by the owners, so that the rectification order, that must fail today

Because it simply cannot proceed, right? And I note that there is the time issue as well but I'm turning to the parts that are plainly not in dispute. So we're... There is no discretion whatsoever here.

Mr Garside: Understood.

SM: OK. So this removes then your seeking of orders for in respect of the timber decking and also in respect of the fourth bedroom. They simply must fail it because, say, you have no standing to make those claims. Notwithstanding, there is a timing issue as well... is that?

Mr Garside Well, the time limit issue we were told was when it was identified.

SM: Well we will turn to that, but that is ...There is discretion with time limits and there's factors that the tribunal must consider, but in terms of orders for rectification under Section 132, there is no discretion. You either are or are not the owners' corporation. You are not. Therefore, the seeking of those orders must fail today. So then...

Mr Bannerman: What does that leave Senior Member?

SM: Well that's what I'm trying to turn and say. What is the balance that we're left with? An order for certification ...

Mr Bannerman: That ties into the same order

SM: Wait. So an order for certification of the fourth bedroom and this by-law in respect ... the imposition of a by-law. Yes. Just give me a moment...

Mr Bannerman: So as I said, this comes back to the by-law can only be enforced Senior Member under section 146 and 147 ...

...

And the only person who can claim that order, Senior Member, is the owners corporation. But anyway, senior member, you can't enforce a by-law that is not registered because it is not in force....

SM: So if the by-law doesn't exist yet, which seems to be common ground, then I can't make an order to enforce it.

...

Then you go on to talk about ... orders for... the jurisdiction under Section 232 ... which is orders about ensuring compliance with by-laws. So that's compliance with existing by-laws. That's not the orders for the creation of new by-laws.

Mr Garside: In that respect, Madam Senior Member, again, the unauthorised works is against compliance with existing by-laws. It's not to do with works without owners' corporation approval.

SM: And then the other element is, again ...Mr Bannerman, can you repeat what you said in respect of the full standing of owners' corporation?

Mr Bannerman: Section 146... That's for enforcement..."

1. Mr Bannerman submitted that any orders for compliance with a by-law that either did not exist or for a new by-law could only be brought under s 146 or 147 (again by an owners' corporation). What followed was a discussion about the proposed by-laws that had actually been sought by the respondent in its application. Mr Garside indicated that when they used the word "enforce", what they sought was that the Tribunal enforce the approval of the by-law as sought by the respondents in their application, not enforce compliance of an unapproved and unregistered by-law.
2. Having previously requested the Tribunal dismiss the application outright, Mr Bannerman then recommended the appellants withdraw their proceedings and get the owners' corporation to commence proceedings against the respondents so the issue could be properly determined.
3. The appellants then sought an adjournment of the matter to join the owners' corporation given the opposition on grounds of standing and so that the respondent's application could be joined in order to deal with both applications (as the respondent had originally requested). The adjournment request was opposed by the respondent and refused by the Tribunal noting it was bound by the time limitations in the statute.
4. Ultimately the following exchange occurred.

"Mr Garside: You've made it clear, Senior Member, as an applicant, what we're asking for, we have no standing...

SM: So certainly we've got to the point of the by-laws, and then there's ...

Mr Garside: I think in fairness of the law and the quickness of this hearing, that obviously, yes, the application should be withdrawn. What's the ramification of withdrawing the application?

SM: Well the application is dismissed because you withdraw it, and then any party can submit a new application... So I will have not made a decision if you withdraw.

...

This application is withdrawn, Yes?

Mr Garside: Based on what you said, yes, yep. Application is withdrawn."

1. An internal appeal is brought as of right on any question of law, and with permission (or "leave") on any other grounds (including from an interlocutory decision such as a refusal to adjourn): Civil and Administrative Tribunal Act 2013 (NSW), s 80(2)(b) ("NCAT Act").
2. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25]- [40] ("Unique"), the Appeal Panel set out the principles concerning questions of law within s 80 of the NCAT Act. An appellant is required to identify a pure question of law which then becomes the subject matter of the appeal: Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]; Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [12], [14]; Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220.
3. A failure to afford procedural fairness is a question of law as is the application of a wrong principle of law or failure to apply the correct law: Unique at [29]-[32] and the cases cited therein.

1. The circumstances in which the Appeal Panel may grant leave to appeal from a decision made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act.
2. The principles governing an application for leave to appeal under the NCAT Act are well established and repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17 (Collins v Urban). The Appeal Panel must be satisfied 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. In Collins v Urban, the Appeal Panel stated, at [76], that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where:

"... there was a 'significant possibility' or a 'chance which was fairly open' that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."

1. Even if an appellant from a decision of the Consumer and Commercial Division requiring leave to appeal has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [31].

1. In this appeal, the Grounds 1, 3 and 4 articulated by the appellants were effectively rolled into one overall question of law: whether the appellants were denied procedural fairness.
2. The appellants submitted that:

(1) They were ambushed just prior to the hearing by a new argument that their case was based on s 132 of the SSMA which they did not have standing to bring;

(2) The Tribunal was heavily in favour of the respondents, only asking and accepting Mr Bannerman's propositions without question;

(3) In so doing, the Tribunal accepted the mischaracterisation of the appellants' application as a claim under s 132 of the SSMA when they had made clear in the Points of Claim that they brought the claim under s 232 of the SSMA. The Tribunal had made up its mind about the new argument even though s 132 was not pleaded and told them repeatedly it must fail.

(4) The appellants as self-represented litigants did not know that s 232 did not require an application to be brought by the owners' corporation. Consequently, when the Tribunal informed them they had no standing and their case was effectively going to fail, they considered the Tribunal had determined that would be the outcome.

(5) Given the Tribunal indicated their case would fail they sought an adjournment to get legal advice and formally join the owners' corporation, but that adjournment was unfairly refused.

1. Consequently, the appellants contended the withdrawal of their application was not voluntary in the sense that the Tribunal made abundantly clear that it had decided they had no standing and their case must fail and that there was no option other than to withdraw.
2. The appellants submitted that the Tribunal had an obligation under s 38 of the NCAT Act to ensure the appellants were heard on their application and that there was procedural fairness. They say there should have been an assessment of the merits of the case but that assessment did not happen because the Tribunal misunderstood at the outset the relief they sought was under s 132 and relied on that misconception to find that their case must fail. Even when the Tribunal did recognise a claim had also been brought under s 232, it misconstrued s 232 as only applying to an issue about enforcing a by-law sought by the respondent, when that was not the way the case had been framed in written submissions. No opportunity was given to the appellants to explain their submissions or explain which provisions they relied upon or make arguments on s 232. This was because the Tribunal only asked Mr Bannerman about this and then predetermined the appellants had no standing, that the application was time barred and the case would fail.
3. The respondents contended on the appeal that there was no decision by the Tribunal because the appellants withdrew their application. Consequently, the respondents say there is nothing to appeal.
4. The respondents further submitted that the appellants had been put on notice in correspondence for some time about the issue of standing; they were not ambushed and were given ample opportunity to address all the issues and seek to amend their application but they did not. When we directed Mr Bannerman to point us to the correspondence advising the appellants of the issue of standing, he could only point to correspondence where issues about being time barred was raised - not issues of standing. We accept on the materials before us that at no point prior to the late filing by the respondents a day before the hearing, were the appellants put on notice of the argument about standing or given the opportunity to seek advice or prepare to meet that argument. In our view the appellants were ambushed by this new argument.
5. Mr Bannerman said that:

(1) He was never asked about s 232 of the SSMA but he also did not try to correct the Tribunal below when she indicated the provision was only concerned with an issue about enforcing existing by-laws.

(2) In any event, the matters were time barred because the works were carried out in 2009 and the appellants were out of time to seek any relief;

(3) It would have been inappropriate for the Tribunal to assist the appellants as self-represented litigants;

(4) In his view the only provisions under which the relief the appellants sought could have been brought was s 132, 146 and 147, which had to be made by owners' corporations not lot owners.

(5) Mr Bannerman at first accepted that s 232 was a much broader provision and not limited to owners' corporations, but then said he disagreed with that very same proposition. In any event, he said that s232 has to give way to the specific provisions which apply for owners' corporations to make applications. We gave Mr Bannerman leave to shortly after the hearing only provide us with a case which he said supported that proposition. After the hearing he provided cases which did not make good that proposition. He also provided a submission which he did not have leave to provide and so we have not taken into account.

(6) There was no utility in this appeal because the underlying dispute had been made redundant.

Consideration of whether the appellants were denied procedural fairness

1. As noted above, each of the grounds individually or effectively form the basis for the appellants contention that they were denied procedural fairness in breach of the Tribunal's duties under the NCAT Act.
2. Whether there is a breach of the Tribunal's duties is to be considered in the context of the obligations imposed upon the Tribunal under the NCAT Act and the manner in which those obligations are performed, consistent with the objects in s 3 of the NCAT Act, including to resolve the real issues in dispute "justly, quickly, cheaply and with as little formality as possible". The Tribunal is nonetheless required to comply with its procedural obligations including:

(1) acting with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms; s 38(4) NCAT Act;

(2) ensuring the parties to the proceedings understand the nature of the proceedings: s 38(5)(a) NCAT Act;

(3) if requested, explaining any aspects of the procedure to the Tribunal or any decision or ruling made by the Tribunal that relates to the proceedings: s 38(5)(b) NCAT Act;

(4) ensuring the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38(5)(c) NCAT Act.

1. As noted in Aboriginal Housing Office v Harrison [2021] NSWCATAP 97 at [47] failure to comply with these obligations may constitute an error of law (citing Italiano v Carbone [2005] NSWCA 177).
2. In our view, a fair reading of the transcript suggests that the Tribunal mistook the nature of the appellants' case (based on the submission made by the respondent's solicitor) and formed the view that all of the relief sought by the appellants required an application from the owners' corporation and that the appellants had no standing - even under s 232 of the SSMA.
3. By adopting the respondent's mischaracterisation of the relief sought by the appellants as arising solely under s 132 of the SSMA for which the appellants had no standing, in our view the Tribunal overlooked the scope and operation of s 232 of the SSMA. The transcript makes clear that the Tribunal was aware there was a claim under s 232 of the SSMA but that the provision was limited to ensuring compliance with existing by-laws and not the creation of a new by-law which she apprehended was what the appellants were seeking in reliance on that provision.
4. Section 232 has been the subject of judicial consideration.
5. In Vickery v The Owners Strata Plan No 80412 (2020) 103 NSWLR 353; [2020] NSWCA 284, the owner of an apartment in a strata scheme claimed that the owners' corporation breached its obligation to maintain the common property, resulting in his apartment leaking with water. The owners' corporation was required under s 106(1) of the SSMA to maintain common property of a strata scheme and keep it in a state of good and serviceable repair. Mr Vickery commenced proceedings in NCAT, claiming damages for lost rent as a result of a leak. The sole issue in the appeal was whether the language of s 232 of the Act, providing that NCAT may "make an order to settle a complaint or dispute", included an order for payment of damages.
6. The Appeal Panel held that there was no power to order damages for breach of s 106. However, on appeal, the Court of Appeal disagreed at [19] and [26]. Acting Justice Basten said:

"[28] ...The terminology adopted in s 232 should be understood to cover claims and disputes with respect to any of the matters identified in subs (1), which are themselves in terms clearly intended to cover the full range of an owners corporation's functions in operating, administering and managing the strata scheme, and exercising or failing to exercise any function under the Act, or the by-laws of the strata scheme.

...

[51] In short, the legislative history demonstrates that the language found in the chapeau to s 232(1) has at all stages been understood as sufficiently broad to encompass an order for the payment of damages. In the absence of an express prohibition in s 232 in relation to the powers of the Tribunal, it would be wrong in principle to construe the unchanged language as subject to an implied limitation which has not existed in its past emanations."

"It is true that if full amplitude is given to the words of s 232(1), then the provision would cover some of the more specific powers conferred on the Tribunal by other sections of the Act. But the Act is not structured in such a way that the conferral of specific powers on the Tribunal should be seen as limiting the conferral of the general power under s 232(1). The specific powers conferred on the Tribunal do not form a class or a genus by reference to which the general power under s 232(1) is to be read down...."

1. In Quo Warranto Pty Ltd v Goodman [2022] NSWCATAP 315, the Appeal Panel stated:

"[66] Since the Court of Appeal's judgment in Vickery, the Appeal Panel has considered the breadth of the Tribunal's powers under s 232(1) on several occasions: see, for example, Owners-Strata Plan No 74,698 v Jacinta Investments Pty Ltd [2021] NSWCATAP 387 (Jacinta), Owners-Strata Plan 62,713 v Liberant [2022] NSWCATAP 80 (Liberant) and Coscuez International Pty Ltd v Owners-Strata Plan No 46433 [2022] NSWCATAP 147 (Coscuez).

[67] In Jacinta and Liberant, the Appeal Panel considered the Tribunal's powers under s 232(1) in the context of the Tribunal's power to make an order equivalent to a Court's power under s 90 of the SSM Act; that is, to order that monies ordered to be paid by Owners corporation not be levied against a lot owner who was successful against Owners corporation in the proceedings (Jacinta at [183]-[202]; Liberant at [115]-[132]). In Coscuez, the issue concerned the Tribunal's power to award damages otherwise than in connection with a claim under s 106(5) of the SSM Act.

[68] The authorities dealing with the extent of the Tribunal's powers under s 232(1) do not specify the ambit of the Tribunal's powers under that provision. That said, the power to make an order under s 232(1) to 'settle a dispute or complaint' is clearly limited to making an order to settle a dispute or a complaint that falls within s 232(1)(a) to s 232(1)(f) of the SSM Act.

[69] In this case, the dispute concerns the levying of contributions. We accept that this falls within s 232(1)(a) as it concerns the administration of the strata scheme and within s 232(1)(f) as it concerns the exercise of function conferred or imposed under the SSM Act; that is, Owners Corporation's function of levying contributions.

[70] In Jacinta, the Appeal Panel stated at [183]-[185]:

'183 The types of orders that can be made are not specified, other than for the requirement that the order be one "to settle a complaint or dispute". There is no reason to construe such a grant in a limited way: Shin Kobe (above); Vickery per Basten JA at [26]-[28] and White JA at [167].

184 Such an approach when construing a general order making power was also adopted by White J (as he then was) in construing the general order making power in s 21(1)(a) of the Agricultural Tenancies Act 1990 (NSW) which permits the Tribunal to make "an order giving effect to a determination that may be made by the Tribunal under this Act": Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd [2015] NSWSC 289 at [79] and following.

185 The question is whether there is a relevant dispute which would attract jurisdiction and enliven the order making power and whether the SSMA otherwise specifies which lot owners are to be levied in funding any liability of an owners corporation to a lot owner in respect of such disputes.'

[71] While the Tribunal's power to make orders to settle disputes or complaints under s 232(1) is broad and should not be construed in a limited way, this does not mean that the power is limitless. The authorities concerning s 232(1) - including the majority decision of the Court of Appeal in Vickery - do not support a conclusion that the Tribunal can make any order it wants to settle a dispute or complaint - even in respect of a matter that falls within s 232(1)(a) to s 232(1)(f) - in the absence of a cause of action arising from a substantive legal right or obligation. In our view, and contrary to the submission made by the Goodmans and the Lockes, s 232(1) empowers the Tribunal to make orders in circumstances where substantive rights and obligations exist. A cause of action that enlivens the Tribunal's power to make orders under s 232(1) may be found elsewhere in the SSMA Act, in the strata scheme's by-laws, in other statute law or in the general law.

1. It seems to follow from the above authorities that in considering the jurisdiction conferred under s 232 of the SSMA:

(1) Section 232 should be understood to cover claims and disputes with respect to any of the matters identified in subs (1), which are themselves in terms clearly intended to cover the full range of an owners corporation's functions in operating, administering and managing the strata scheme, and exercising or failing to exercise any function under the Act, or the by-laws of the strata scheme.

(2) The SSMA is not structured in such a way that the conferral of specific powers elsewhere in the SSMA on the Tribunal should be seen as limiting the conferral of the general power under s 232(1) and any specific powers conferred on the Tribunal do not form a class or a genus by reference to which the general power under s 232(1) is to be read down.

(3) A cause of action that enlivens the Tribunal's power to make orders under s 232(1) may be found elsewhere in the SSMA Act.

(4) The correct question to ask is whether a complaint or dispute before the Tribunal falls within any of the matters referred to in s 232 (1) (a) - (f).

1. It is also abundantly clear that an interested person for the purposes of s 232 SSMA, includes the owner of a lot.
2. Contrary to the submissions made by the respondents, it follows from the above that a specific grant of power that is provided for elsewhere in the SSMA (for example s 132 of the SSMA) is not to be read as restricting the general power granted under s 232. The question relevant to whether s 232 gives power, is whether the compliant or dispute falls within any of the matters referred to at s 232 (1) (a) to (f) (which includes the operation, administration or management of a strata scheme under this Act).
3. It is clear from the exchange that the Tribunal Member considered the s 232 aspect of the appellants' claim was dealing only with the compliance with existing by-laws (by reference to the respondent's proposed by-law which was not yet registered) and the respondents' solicitor did not disavow the Tribunal of that understanding. The Tribunal also indicated the claim was time barred as the respondents had maintained. Both of these propositions were misconceived.
4. In our view, it was at least arguable that the Tribunal had the power to make orders sought under s 232 of the SSMA in respect of aspects of the appellants' claim; that the appellants had standing to bring that claim; and that it was not time barred given the period of 2 years period that applies (from becoming aware of the issue giving rise to the claim and not the date the works were carried out as Mr Bannerman had contended). The Tribunal appeared to consider s 232 only applied to the request for enforcement or compliance with the respondent's proposed by-law. That was not how the claim was put in writing by the appellants. Whether the appellants' claim under s 232 was meritorious is an entirely different question and not one that has been assessed below or on this appeal.
5. In accepting Mr Bannerman's characterisation of all of the relief concerning certification and compliance being sought solely under s 132 of the SSMA, the Tribunal clearly misunderstood the scope of its jurisdiction particularly in so far as the appellants had in fact sought relief under s 232. The Tribunal did not even ask the appellants to clarify the scope of their claim under s 232 and called only on Mr Bannerman as part of his ad hoc application to dismiss the proceeding. In our view the Tribunal misconceived the scope and operation of s 232 which resulted in her predetermining the claim prior to a hearing and denying the appellants the opportunity be heard on that claim. This was in breach of s 38(5)(c) a constituted a denial of procedural fairness.
6. Acceptance of the respondents' submissions as to time limitations was also erroneous in circumstances where the legislation clearly prescribed the period to start from the time there is an awareness of a foundation for a claim - not the time when the unauthorised works were completed.
7. We find the appellants were ambushed by the arguments about standing but also about the dismissal application which was not even explained to them.
8. We are of the view that the Member's misunderstanding of the extent of the appellants' application and misconstruction of the law, significantly influenced the course of the hearing. It resulted in the Tribunal informing the appellants (in the context of a dismissal application) they had no standing and that their case would fail.
9. When faced with this prospect they sought an adjournment to try to remedy the issues raised and to seek legal advice, but that application was refused. While refusing the application itself may not have been in error (a matter we have not been asked to consider in this appeal), the effect of the refusal of the application in combination with being told by the Member that their case must fail, put the appellants in a position where there could not effectively have their case heard and determined. The transcript shows that the appellants were significantly influenced by the Member's clearly expressed (but erroneous) view that the appellants did not have standing to bring their claim, and that the Tribunal consequently did not have power to make orders sought.
10. We find that the appellants, as self-represented litigants who were ambushed by a new argument 15 hours before the hearing, were put in a position during the hearing where, being told their case would fail and their application for an adjournment refused, felt they had no other option than to withdraw the proceeding (as suggested by Mr Bannerman).
11. By mischaracterising and misstating the nature of the proceedings, the Member was in breach of the obligation to ensure the appellants understood the nature of the proceedings, to ensure that they understood the implications of withdrawing their application and to ensure a fair hearing. We consider this also constitutes a breach of s 38(5) of the NCAT Act and was a denial of procedural fairness.
12. The appeal should therefore be allowed.

1. The respondents also submitted that there was no utility in the appellants appeal as the underlying dispute had been made redundant by supervening events (ie the owners' corporation had now filed its own proceeding and the appellants had withdrawn their case). The appellants confirmed there was no requirement to rehear the matter if their appeal is allowed because of the proceedings that have commenced by the owners' corporation.
2. A proceeding will lack utility if determining it serves no practical purpose such as where there is a supervening event or circumstance which results in there being no controversy between the parties: Hunter Development Corp v Save Our Rail NSW Inc (No 2) ( 2016) 93 NSWLR 704; [2016] NSWCA 375 at [40] ("Hunter Development"). Ordinarily, Courts refuse to determine issues that have become moot or have no utility: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [47]. In order to protect the Court's processes from being abused, the Courts have the power to dismiss or stay proceedings involving issues which are no longer live between the parties. This includes the power to dismiss an appeal brought as of right "if later events show that the questions involved in it have become moot between the parties": Jardin and Jardim Investments Pty Ltd v Metcash Ltd [2011] NSWCA 409 at [30]- [31] ("Jardin").
3. Similarly, the Tribunal, with procedural powers under s 36 and s 38 of the NCAT Act to ensure proceedings meet the guiding principle of facilitating the "real issues in the proceeding," has power to summarily dispose of issues which have no utility: Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners - Strata Plan No 64807 [2023] NSWCA 188 at [160]- [162] cited in Commissioner of Police, New South Wales Police Force v Parish [2025] NSWCATAP 180 at [50] ("Parish").
4. As noted in Parish at [51], while there is a general rule that proceedings which have become moot should not be entertained, there is a discretion in the courts to determine matters, regularly commenced, notwithstanding that there is no longer a live issue between the parties. A factor which has been identified as relevant to the exercise of that discretion is where there is a live issue of costs: Hunter Development at [27]-[38], [46], [56]; Jardin at [32]; Parish at [52] and Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139 at [7]- [25] (also cited in Parish).
5. In this case, we accept that the matter was regularly commenced but because the issues have now been overtaken by the owners' corporation's application which was lodged prior to the hearing of the appeal, there is no longer a live issue between the parties other than the outstanding costs orders made on 30 May 2025. We consider the outstanding costs decision gives utility to this appeal. Consequently we reject the respondents' submission to the contrary.

1. The respondents submitted that there is nothing to appeal in this case because there was no decision made.
2. It is true that the Tribunal did not finally determine the merits of the matter, or hear evidence and submissions on the substantive arguments raised. However, it is trite law that an appeal is against orders and not reasons and therefore the question of law must be capable of affecting the orders the subject of the appeal: Unique at [25].
3. In this case, whether there was a denial of procedural is capable of affecting the order made dismissing the proceeding. That dismissal was made on the basis of a withdrawal by the appellants made in the circumstance where this Appeal Panel has found they were denied procedural fairness.
4. We reject the respondent's submission.

1. Ordinarily, having allowed the appeal in circumstances where there has been no assessment of the merits of the case or the evidence provided, it would be appropriate to remit to the Tribunal for consideration. However, as noted above, the parties agreed that there is no point remitting as supervening events have made the original dispute redundant. The only remaining controversy between the parties is the costs decision.
2. At the hearing, we granted an extension of time for the appellants to appeal the costs decision and stayed the appeal of the costs decision until determination of the substantive appeal.
3. As the appeal has been allowed, subject to what either party may submit, it would naturally flow that the appeal from the costs decision would also be allowed.
4. We will make directions for the filing of any submissions by the parties on the appeal from the cost's decision and also direct that the parties address whether the appeal from the cost's decision should be determined on the papers.

1. For these reasons we make the following orders:

(1) The appeal is allowed.

(2) The orders made by the Tribunal in 2024/00432941 on 28 February 2025 are set aside.

(3) The parties are to provide any written submissions in respect of the appeal from the cost's decision dated 30 May 2025 within 21 days of the date of these orders and are to notify the registry whether the appeal from the cost's decision can be dealt with on the papers.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

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.