Gokani-Robins Pty Ltd v The Owners – Strata Plan No 77109

Collins v Urban [2014] NSWCATAP 17

FSX v Chief Commissioner of State Revenue [2024] NSWCATAP 169

Gokani-Robins Pty Ltd v The Owners - Strata Plan No 77109 [2022] NSWCATCD 164

Liang v University of Technology, Sydney [2018] NSWCATAP 285

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

New South Wales Land & Housing Corporation v Orr [2019] NSWCA 231

Noori v JMG Auto Parts Pty Ltd [2022] NSWCATAP 250

Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69

SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9

The Owners of Strata Plan No 3397 v Tate (2007) 70 NSWLR 344; [2007] NSWCA 207

The Owners - Strata Plan No. 77109 v Gokani-Robins Pty Ltd [2023] NSWCATAP 82

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

1. This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal (Tribunal) dated 2 August 2024 in application 2023/003991918 (formerly SC 23/25444) (Primary Decision).
2. The appellants, who are the owners of lots in Strata Plan No 77109, sought that a fire safety by-law, being Special By-Law 16 (SBL 16) be declared invalid pursuant to s 150(1) of the Strata Schemes Management Act 2015 (NSW) (SSMA). Section 150 relevantly provides that the Tribunal may make an order declaring a by-law to be invalid if the Tribunal considers that the by-law is harsh, unconscionable or oppressive.
3. The Tribunal set out the relevant parts of the text of SBL 16, as originally adopted by the respondent owners corporation, in the Primary Decision at [14] as follows:

"Owners General Obligations

.1 [Referred to as SBL16(1)]

An owner or occupier must not do anything or cause or permit any Authorised person to do anything, in or on that Owner's or Occupier's Lot or anywhere in the Building that:

.1.1 Interferes with, impedes, or affects, or is likely to interfere with, impede or affect, the operation of a Fire Safety System, or reduce the level of fire safety in the Lot or anywhere else in the Building, including but not limited to:

(a) Interference with any smoke detector or smoke alarm installed in the Lot or the Building.

(b) Use of or interference with any fire hydrant or any other fire fighting or Fire Safety System except in the case of emergency.

(c) Tampering with fire doors or fire exits so that they remain open or ajar allowing unauthorised entry or exit to the Building.

(d) Tampering with entry doors to Lots including but not limited to, removing and replacing door locks or drilling holes in the door (except with Owners Corporation's consent), popping entry doors open or otherwise interfering with the entry doors so that the integrity of the doors as a fire door is diminished.

(e) Tampering, touching, or hanging items from a fire sprinkler head.

.1.2 Triggers a false alarm in respect of the Fire Safety Systems or any common property services within the strata scheme or cause the Fire Brigade or some other authority or Service Provider or person to attend the Building for a false alarm.

.1.3 (Otherwise than in an emergency) Would cause a call out of an Authority, a Service Provider, the Fire Brigade, or some other person at the Building.

.2 [Referred to as SBL 16(2)]

If the Owners Corporation or anyone authorised by them, gives a notice to an Owner or Occupier requiring access to their Lot for the purposes of inspecting, testing, repairing or replacing Fire Safety Systems, the Owner and Occupier of a Lot must comply with that notice and allow that access to the Lot to take place at the time and date notified to that Owner or Occupier by the Owners Corporation (however, in the event of an emergency, the Owner or Occupier acknowledge that no notice will be required).

Owner's indemnity and responsibility for costs

.3 [Referred to as 16(3)]

An Owner and/or Occupier shall pay and indemnify the Owners Corporation against any claim, charge (including fines) or costs (including rectification costs) arising from:

.3.1 A false fire alarm;

.3.2 Call-out or attendance of any Authority, Service Provider or the Fire Brigade to the Lot or Building (where the Owners Corporation is charged);

.3.3 Damage from fire, smoke, water or fire retardant or other chemicals to the Common Property or Building from impeding or affecting the Fire Safety System;

.3.4 Works required to repair, remediate or upgrade the Fire Safety System

caused by or arising as a consequence of the act, negligence or omission of that Owner and/or Occupier (or their Authorised Persons) in respect of their Lot, Common Property or Building.

.3.5 A failure by an Owner and/or Occupier to give access to their Lot in accordance with clause 53.2 (sic) (where the Owners Corporation or their Authorised Fire Safety Inspector is required to attend at the Lot to carry out the inspection at another time and date at additional cost); and .3.6 A breach and subsequent enforcement of this By-Law.

For the purposes of this bylaw, negligence includes but is not limited to inadequate ventilation and the carrying out of works.

.4 [Referred as SBL 16(4)]

The Owners acknowledge the Owners Corporation's right under clause .6.5 to demand payment of monies and that the provisions of Schedule 2, clause 10(8) of the SSMA will apply to any failure to make such payment, such that the voting rights of the Owner are diminished in accordance with that part.

.5 [Referred to as 16(5)]

Notwithstanding that the Owner may allow an Occupier or other person authorised by them to occupy their lot, the Owner will remain responsible to the Owners Corporation and, where appropriate, to an Authority for complying with the obligations of the Owner or Occupier under this By-Law.

Owners Corporation's rights

.6 [Referred to as 16(6)]

Despite anything contained in the By-Laws and in addition to the powers, authorities, duties and functions conferred on or imposed on the Owners Corporation pursuant to the SSMA, the Owners Corporation shall have the following powers, authorities, duties and functions:

.6.1 To receive reports from the NSW Fire Brigade on the call of a nature of any false fire alarm or call-out to the building in response to a Fire Safety System.

.6.2 To receive reports from any Service Provider on the cause or nature of any Call-out to the Building in response to a Fire Safety System and on the cause or nature of any work or service provided by that Service Provider to the Building.

.6.3 To investigate a false alarm, a Call-out or a service provided by a Service Provider and the circumstances giving rise to such a false claim, Call-out or service.

.6.4 To determine, by reference to any report, advice or document or otherwise, who is responsible for the Call-out, alarm or service (whether it be an Owner or Occupier of the Lot, the Owners Corporation or otherwise).

.6.5 To demand from an Owner or Occupier, payment of the costs, expenses and charges referred to in clause .3 and to recover such monies as a debt due and payable to the Owners Corporation under s80 of the SSMA, if not paid within one month after the date on which notice of such cost has been given to the Owner or occupier, together with any interest payable at the rate applicable to contributions under clause 79 of the SSMA or the SSMR until paid together with the expenses of the Owners Corporation incurred in recovering those amounts.

.6.6 To include on a notice under s109 of the SSMA monies payable under this By-Law which remain unpaid.

.6.7 To demand that a defaulting Owner or Occupier under this By-Law do certain acts or things to remedy its default or to carry out such acts or things on behalf of the defaulting Owner and recover the costs of the work from the defaulting Owner as a due and payable.

.6.8 To enter upon the lot to carry out any work relating to the obligations in this By-Law.

...

.8 In this By-Law, these defined terms have the following meanings:

...

.8.1 Fire Safety Systems includes any fire detection or protection systems on Lot or Common Property including any but not limited to any device or structure which:

(a) monitors or signals the incidents of smoke, heat or fire within or adjacent to the Building;

(b) provides lighting in the case of smoke, heat or fire within or adjacent to the Building;

(c) controls access throughout the Building and any adjacent structures in the case of smoke, heat or fire in or adjacent to the Strata Building (Including doors, stairs and lifts);

(d) extinguishes or decreases the spread of fire, smoke or heat through or adjacent to the Strata Building;

(e) is required by Law for fire safety or that otherwise improves fire safety

and includes but is not limited to any fire alarms and panels, fire fighting or safety equipment, hoses, hydrants, sprinklers, heat or smoke detectors, fire rated doors, entrance door locksets & security devices, exit and emergency signage and any associated wiring or cable.

..."

1. Clause 8 of SBL 16 also included a definition of "SSMA":

"8.7 SSMA means the Strata Schemes Management Act 1996."

1. SBL 16 was amended by special resolution (Special Resolution) at a general meeting of the respondent held on 3 November 2023. The amendments made on 3 November 2023 removed cl 4 of the special by law and amended cl 6.5 to read:

"To demand from an Owner or Occupier, payment of the costs, expenses and charges referred to in clause .3 and to recover such monies as a debt due and payable to the Owners Corporation under s80 of the SSMA in and subject to the determination of a Court or Tribunal of competent jurisdiction of the reasonableness of the costs, expenses and charges, if not paid within one month after the date on which notice of such cost has been given to the Owner or occupier, together with any interest payable at the rate applicable and available at law to contributions under clause 79 of the SSMA or the SSMR until paid together with the expenses of the Owners Corporation incurred in recovering those amounts."

(deletions and additions as in original)

1. The Tribunal dismissed the appellants' application.
2. For the following reasons, the appeal will be dismissed.
3. Costs are reserved. We will give directions for the filing of submissions (and if necessary evidence) as to costs.

1. By Amended Notice of Appeal filed 25 September 2024, the appellants raise six grounds of appeal, being, in summary:

(1) Whether the Tribunal erred in finding that SBL 16 "as a whole (as amended)" was not 'harsh, oppressive or unconscionable" (Ground 1);

(2) Whether the Tribunal erred in its construction of SBL 16 (as amended) (Ground 2);

(3) Whether the Tribunal erred by failing to provide proper reasons in in its findings in relation to SBL 16 (Ground 3);

(4) Whether the Tribunal erred by applying a wrong principle of law, in its findings in relation to SBL 16, "including but not limited that at [at] [152], Clause 6(6.6) 'on its face no longer has any application' because SSMA 1996 has been repealed'"; (Ground 4);

(5) Whether the Tribunal erred by failing to take into account "relevant considerations, precedent, submissions and/or evidence (often unchallenged)" relied upon by the appellants (Ground 5);

(6) Whether the Tribunal erred by failing to identify the right issues or ask the right questions, in seeking not to determine if SBL 16 "in its original form" was not "harsh, oppressive or unconscionable" (Ground 6).

1. The appellants submit that each of these grounds raise questions of law. The appellants do not seek leave to appeal on grounds other than a question of law.

1. By its Reply to Appeal, the respondent opposed all grounds of appeal. The respondent submitted that the Tribunal's dismissal of the appellants' application was correct for the reasons given by the Tribunal.
2. The respondent further submitted that no ground of appeal raises a question of law, and that all grounds require leave to appeal which the appellants did not seek.

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel set out a non-exhaustive list of possible questions of law giving rise to an appeal as of right:

(1) whether there has been a failure to provide proper reasons;

(2) whether the Tribunal identified the wrong issue or asked the wrong question;

(3) whether a wrong principle of law had been applied;

(4) whether there was a failure to afford procedural fairness;

(5) whether the Tribunal failed to take into account relevant (that is, mandatory) considerations;

(6) whether the Tribunal took into account an irrelevant consideration;

(7) whether there was no evidence to support a finding of fact;

(8) whether the decision was so unreasonable that no reasonable decision-maker would make it.

1. These matters were expanded by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 where the Appeal Panel stated (references omitted):

"32 To the above list [referring to the list in Prendergast extracted above] might be added the following (some of which are nuanced aspects of the categories in Prendergast):

(1) Whether the Tribunal drew inferences that were not available from the facts as found (an extension of item 7 [of Prendergast]) ...

(2) Whether the construction of a statute or contract arrived at by the Tribunal at first instance was wrong in some identified way: ...

(3) Whether the Tribunal's decision was vitiated by bias, or a reasonable apprehension of bias, relates to and intersects with the fair hearing rule, and may encompass or be related to the procedural fairness question: ...

(4) Whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice, that is, procedural unfairness. Alternatively, it may also constitute a constructive failure to exercise jurisdiction: ...

(5) Whether the facts as found necessarily satisfied the statute or necessarily did not: ...

...

1. As we have noted, the appellants do not seek leave to appeal.

1. Before considering the grounds of appeal, it is appropriate to briefly summarise the structure and content of the Primary Decision.
2. After a short introduction (at [1]-[3]), the Tribunal listed the documents including submissions received from the parties at or before the hearing (see [4]-[8]) and after the hearing (see [9]-[10]).
3. At [9], the Tribunal noted that, at the completion of the hearing, directions were made for:

(1) the respondent to file a transcript of Local Court Proceedings between the parties and the minutes of a general meeting to be held on 3 November 2023, at which time a motion was to be considered for the repeal and amendment of parts of SBL 16;

(2) the parties to file further submissions.

1. Those documents were subsequently received by the Tribunal.
2. At [11]-[25], the Tribunal then set out the background to and a summary of the appellants' claim. We note that part of that background was that:

(1) On 31 August 2020 the respondent commenced proceedings in the Local Court of NSW (Local Court Proceedings) in which it relied on:

(a) SBL 16, to claim costs (including call out costs) and other loss and damage incurred by the respondent in respect of the fire safety system of the strata scheme arising from the activation of fire alarms; and

(b) Special By-Law 17 (SBL 17), described as a "costs recovery by-law", to claim the costs of enforcement of SBL 16.

(2) In January 2022, the appellants applied to the Tribunal for SBL 17 to be declared invalid. That application was successful, the Tribunal declaring on 8 August 2022 that on and from 14 July 2020 SBL was invalid on the basis that it was harsh, unconscionable or oppressive: Gokani-Robins Pty Ltd v The Owners - Strata Plan No 77109 [2022] NSWCATCD 164.

(3) That decision was upheld on appeal: The Owners - Strata Plan No. 77109 v Gokani-Robins Pty Ltd [2023] NSWCATAP 82.

1. At [26]-[30], the Tribunal identified the relevant provisions of the SSMA, namely ss 136, 139 and 150.
2. At [32], the Tribunal then set out the issues requiring determination as follows:

32 The matters for consideration therefore include:

(1) Whether, having regard to principles of Anshun Estoppel, it was unreasonable for the applicants not to have sought the relief claimed in respect of SBL 16 in the previous Tribunal proceedings in respect of SBL 17 and whether the applicants are estopped from maintaining the claim.

(2) Whether the application is out of time and whether the applicants require an extension of time to bring the application, and if so, whether time to bring the application should be extended.

(3) Whether the Application seeks for the Tribunal to determine issues of fact or law already determined by the Local Court and if so, the extent to which it does so.

(4) Whether SBL 16 [or more particularly subclauses 16(1) to (16.8) [sic, 16(8)]] is harsh, unconscionable or oppressive and ought to be declared invalid.

(5) Subject to a consideration of (1) to (4) whether any orders ought to be made for the relief claimed by the Applicants, and if so, what orders should be made.

1. The Tribunal dealt with the first issue at [33]-[41]. The Tribunal found that:

(1) although both SBL 16 and SBL 17 were relied on in the Local Court Proceedings, they were different by-laws that operated differently and have a different purpose;

(2) SBL 17 was a general by-law for the recovery of money owed to the respondent. SBL 16 is concerned with fire safety in the strata scheme, and in that light operates differently and the facts relevant to its operation are different to the operation of SBL 17;

(3) accordingly, save for statements of general principle, findings in respect of whether SBL 17 is harsh, unconscionable or oppressive and invalid, are not relevant to a determination of whether SBL 16 is harsh, unconscionable or oppressive and ought to be declared invalid;

(4) it was not satisfied that the facts relevant to the consideration of the validity of SBL 16 were so connected with the subject matter of the proceedings to have SBL 17 declared invalid that it was unreasonable for the claim in respect of SBL 16 not to have been made in the proceedings in respect of SBL 17.

41 I therefore find that the fact that the respondent has commenced proceedings against the applicants in the Local Court for recovery of costs which it says it is entitled to claim pursuant to SBL 16, and the applicants have previously (successfully) sought to have SBL 17 declared invalid (in circumstances where the claim was initially made in the Local Court Proceedings in reliance on SBL 16 and 17), does not mean the applicants are now Anshun estopped from seeking to have SBL16 declared invalid.

42 It would follow that any contention (relying on principles of Res judicata or issue estoppel) that the applicants are otherwise estopped from maintaining the present application because of the determination of the application in respect of SBL 17 should also be rejected.

1. In respect of the second issue, the Tribunal found that the application was out of time, but for the reasons given at [60], it was satisfied that it was in the interests of justice that the time for the appellants to bring their application to have SBL 16 declared invalid be extended. This finding was not the subject of appeal. We do not need to consider whether the Tribunal was correct in finding that the application was out of time. We should not be taken to be confirming that finding.
2. The third issue was dealt with in the Tribunal's consideration of the first issue.
3. The fourth issue was the subject of extensive consideration by the Tribunal in over 100 paragraphs of the Primary Decision, [61] - [169].
4. At [61]-[63], the Tribunal outlined its approach to the consideration of this issue.
5. At [64]-[76], the Tribunal set out what it saw as the relevant principles in determining whether SBL 16 was harsh, unconscionable or oppressive.
6. At [77]-[90], the Tribunal discussed the general operation of SBL 16, noting that SBL 16:

(1) is concerned with fire safety and provides a common set of rules with respect to fire safety for the benefit and safety of all lots;

(2) prohibits an occupier or lot owner from doing anything that:

(a) interferes with, impedes or affects, or is likely to interfere with, impede or affect the operation of a Fire Safety System (FSS) or reduce the level of fire safety in the owner's lot or anywhere else in the building;

(b) triggers a false alarm in respect of the FSS; or

(c) otherwise than in an emergency, would cause a call out of, for example, an Authority, a Service Provider or the Fire Brigade;

(3) enables the respondent to demand that a defaulting owner remedy their default and provides for the respondent to enter upon a lot (subject to the notice provisions) to do work required by or relating to the obligations of the by-law and for the purposes of, inter alia, inspecting, testing, repairing or replacing the FSS;

(4) provides that an owner is to indemnify the respondent in respect of any claim or charge arising from, inter alia, a false fire alarm or call out or any damage or work required that is caused by or arises because of the act, negligence or omission of the owner;

(5) allows for the respondent to enforce the by-law by providing that the respondent can:

(a) receive reports and investigate any false fire alarm or call out;

(b) determine by reference to any report, advice or document who is responsible for that call out, alarm or service; and

(c) if it is determined that an owner is responsible, demand payment of the cost, expenses and charges from the responsible owner.

1. The Tribunal, at [91] ff, then considered each clause of SBL 16, finding that SBL 16 and each of its subparts was not harsh, unconscionable or oppressive. See pars:

(1) [91]-[100], in relation to SBL 16(1);

(2) [101]-[107], in relation to SBL 16(2);

(3) [108]-[115], in relation to SBL 16(3);

(4) [116]-[119] in relation to SBL 16(4);

(5) [120]-[126], in relation to SBL 16(5);

(6) [127]-[128], in relation to SBL 16(6);

(7) [129]-[135], in relation to SBL 16(6.1-6.3);

(8) [136]-[142], in relation to SBL 16(6.4);

(9) [143]-[149], in relation to SBL 16(6.5);

(10) [150]-[154], in relation to SBL 16(6.6);

(11) [155]-[162], in relation to SBL 16(6.7);

(12) [163]-[169], in relation to SBL 16(6.8);

1. In respect of the fifth issue, given its conclusions on the first to fourth issues, the Tribunal was not satisfied that SBL 16 was harsh, unconscionable or oppressive.
2. Further, the Tribunal stated at [171]:

"Mindful of the Special Resolution, even if, having regard to s 141 of the SSMA, I would be required to consider SBL 16 in its unamended state and I found that SBL 16 (4) by how it impacted on voting rights and SBL 16 (6.5) because it didn't require disputed costs and expenses to be determined by a court or tribunal, were in some way harsh, because SBL 16 (4) has been repealed and SBL 16 (6.5) amended to make clear that disputed costs, expenses and charges may only be recovered in a court or tribunal and that the right of recovery would be subject to the court or tribunal's determination as to their reasonableness, I would decline to exercise my discretion to declare SBL (4) or SBL 16 (6.5) invalid."

1. Before considering the grounds of appeal, we note the following matters, all of which are set out in the Primary Decision.

(1) SP 77109 was registered on 16 June 2006 with 113 commercial lots;

(2) the appellants have owned lots 21, 22, 23, 24, 25, 48, 49, 93, 94, 95 and 96 since October 2006;

(3) SBL16, "Fire safety", was made following a special resolution passed at an extraordinary general meeting on 29 November 2013;

(4) the respondent commenced the Local Court Proceedings on 31 August 2020 in which it relied on SBL 16 and SBL 17;

(5) SBL 17 was declared invalid on 8 August 2022 and that decision was upheld on appeal;

(6) the Local Court Proceedings have been adjourned to permit the respondent to apply to the Tribunal to seek to have SBL 16 declared invalid;

(7) on 3 November 2023, the respondent passed the Special Resolution that:

(a) repealed SBL 16(4); and

(b) amended SBL 16(6.5) as set out at [5] above to provide that:

(i) the costs, expenses and charges may only be recovered in a Court or Tribunal of competent jurisdiction; and

(ii) the right of recovery is subject to the determination of a Court or Tribunal of the reasonableness of the cost, expenses and charges;

(8) notwithstanding that there was no evidence that a relevant notice had been lodged or a recording made of the amendments pursuant to ss 141(2)(a) and (b) of the SSMA, the Tribunal saw no reason why it should not determine the matter by reference to SBL 16 as amended by the Special Resolution.

1. We shall now deal with the grounds in the same order in which the appellants' submissions were made. As the appellants submitted that by considering the grounds in reverse order repetition would be avoided, we will commence with Ground 6.
2. The appellants submit that each ground raises a question of law. The respondent submits otherwise.
3. In considering the grounds of appeal, we have had the benefit of:

(1) the appellants' written submissions in chief, filed 4 December 2024 (51 pages);

(2) the respondent's written submissions in response filed 20 December 2024 (16 pages);

(3) the appellants' written submissions in reply, filed 15 January 2024 (13 pages);

(4) Mr Gokani's oral submissions at the appeal hearing; and

(5) Mr Forgács' oral submissions at the appeal hearing.

1. We note that the appellants' submissions, after setting out a background to the appeal over some three pages, then address the "Importance of [the] Appeal", at pars [21]-[26]. The appellants submit that "ensuring the rights and obligations contained in strata by-laws are fair, equitable, balanced and reasonable is of major import to about 1 in 5 persons residing in the [S]tate", and that it is "also of major import that property owners and occupiers have confidence that rights and obligations of parties are clear".
2. On the other hand, the respondent submits that the appeal raises no question of general importance.
3. While the appellants' assertions may be relevant were we considering whether or not to grant leave to appeal (see Collins v Urban [2014] NSWCATAP 17 at [84(2)(b)]), these issues are not relevant in considering an appeal said only to raise questions of law and where leave to appeal is not sought.

1. The appellants' submissions are detailed, if not prolix, being 51 pages of single-spaced typing. It may be considered surprising that submissions of such length were thought to be necessary when the Primary Decision itself consisted of 40 pages of double-spaced typing.
2. To take Ground 3 alone, namely that the Tribunal failed to provide proper reasons, in an argument developed over some 13 pages and over 100 paragraphs and sub-paragraphs, the appellants submit that Tribunal erred in respect of 18 of the 173 paragraphs of the Primary Decision.
3. This may appear, at the least, to be the appellants impermissibly attempting to have a "second go" (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. At worst, submissions of such length may be considered as vexatious.
4. As the Appeal Panel stated in Liang v University of Technology, Sydney [2018] NSWCATAP 285, at [68]:

"... It is not necessary for us to make findings on every argument or every submission, particularly where the arguments advanced are numerous and of varying significance, and are often unsupported by any evidence at all, and we have not done so: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443; Rajski v Bainton (Court of Appeal, unreported, 6 September 1991). This is particularly so where, as is the case here, the submissions are voluminous, unfocused and diffuse."

1. We have followed that approach. Nevertheless, we note that, in dealing with the appellants' submissions even in that less than exhaustive fashion, our decision extends over 60 pages. That is 50% longer than the Primary Decision.

Whether the Tribunal erred by failing to identify the right issues or ask the right questions, in seeking not to determine if SBL 16 in its original form was "harsh, unconscionable or oppressive"

1. Ground 6 as stated in the appellants' submissions filed 4 December 2024 is "that the Tribunal erred by failing to identify the right issue(s) or ask the right question(s) in seeking not to determine if SBL 16 (amended) was 'harsh, unconscionable or oppressive'".
2. However, in the Amended Notice of Appeal, the appellants stated this ground as being that the Tribunal erred by failing to identify the right issues or ask the right questions) in seeking not to determine if SBL 16 "in its original form" was harsh, unconscionable or oppressive.
3. The respondent identified this issue in its submissions. The appellants, in their submissions in reply, acknowledge the "inadvertent error", and submit that both the Amended Notice of Appeal and the submissions make clear that the reference should have been to "SBL 16 (original)".
4. On that basis, the appellants submit that:

"28.0 ... the right issue/question that the Tribunal failed to identify was whether SBL 16 (original) was 'harsh, unconscionable or oppressive' and ought be found invalid as a result. That includes in relation to SBL 16 (original):

28.1. As a whole

28.2. Clause 4

28.3. Clause 6.5

29.0 The Appellants identify the following instances whereby the Tribunal so failed:

29.1. At Paragraph [18] of the Primary Decision

29.2. At Paragraphs [116]-[119] of the Primary Decision

29.3. At Paragraph [149] of the Primary Decision."

1. For these reasons, the appellants ask that the Primary Decision be set aside and remitted to the Tribunal with directions to identify the "right issues or ask the right question(s)", specifically addressing whether SBL 16 "original" is 'harsh, unconscionable or oppressive' and ought be found invalid on that basis.

1. The respondent accepts that whether the Tribunal identified the wrong issue or asked the wrong question may constitute a question of law, but submits that no such error was made by the Tribunal.
2. In summary, the respondent submits that:

(1) Ground 6 concerns an amendment to SBL 16, which was passed by special resolution on 3 November 2023 (the week after the Tribunal hearing);

(2) the proposed special resolution was the subject of evidence at the hearing, and further evidence was filed following the hearing (with the Tribunal's leave) as to the Special Resolution having been passed;

(3) the effect of the Special Resolution was, as the Tribunal recorded at [16] of the Primary Decision, to repeal by-law 16(4) and to amend by-law 16(6.5). Accordingly, the respondent submits that the Tribunal considered whether SBL 16, as amended, was "harsh, unconscionable or oppressive";

(4) the Tribunal was correct to do so, as s 150 of the SSMA empowers the Tribunal to make an order declaring a by-law to be invalid "if the Tribunal considers ... that the by-law is harsh, unconscionable or oppressive" (emphasis added by the respondent);

(5) it is clear from the terms of s 150 of the SSMA, in particular the framing of the precondition to the exercise of the power in the present tense, that the Tribunal must consider whether the by-law in question is harsh, unconscionable or oppressive at the time of its determination, not at some other time. Unless the Tribunal makes an order otherwise, an order under s 150 also only operates prospectively: SSMA s 150(3). Accordingly, in making the Primary Decision, the Tribunal considered whether SBL 16, as it existed at that time (that is, with the amendments passed on 3 November 2023), was "harsh, unconscionable or oppressive";

(6) further, at [171] of the Primary Decision, the Tribunal found that even if it was required to consider SBL 16 in its unamended state, it would decline to exercise its discretion to declare it invalid, given that amendments were made to it on 3 November 2023. It follows that even if the appellants were correct in their contention that the Tribunal was required to consider SBL 16 in its unamended form, the Tribunal did not fail to address that question;

(7) the matters to be determined in the Local Court Proceedings have no bearing on the issues to be determined by the Tribunal; there was no referral by the Local Court of an issue to the Tribunal for determination (and no such process exists). The Local Court proceedings had merely been adjourned, at the appellants' request, pending the determination of the Tribunal proceedings, as the appellants maintained that the Tribunal proceedings would bear on the outcome of the Local Court proceedings. The fact of that adjournment could not affect the proper exercise of the Tribunal's functions.

1. We note that the appellant's submissions in reply in relation to Ground 6 are lengthy, and the appellants comment on each and every paragraph of the respondent's submissions. The primary submissions made by the appellants may be summarised as follows.
2. First, while the appellants acknowledge that evidence of amendment of SBL 16 was filed and accepted by the Tribunal, they do not accept that that evidence was capable of amending or overriding their original application seeking review of the unamended form of SBL 16. The appellants submit that there is no authority for such a circumstance and that no leave or orders were sought or obtained enabling the same. Thus, the appellants submit that the Tribunal failed to address their original application and, without the consent or request of either party, has exceeded its powers.
3. Similarly, the appellants do not accept that the amendment of SBL 16 was capable of extinguishing the right of the appellants to have the unamended SBL 16 reviewed in relation to earlier conduct of the respondent. The appellants submit that to allow such a position would effectively permit all owners corporations to amend their by-laws in order to prevent any lot owner or occupier from challenging prior conduct of owners corporations relying on harsh, unconscionable or oppressive by-laws. That is a perverse outcome and is particularly egregious when considering the respondent continues to maintain its claim against the appellants by way of the Local Court Proceedings on the basis of the unamended SBL 16.
4. The appellants submit that it follows that the Tribunal has not discharged its duty to make the determination required and exceeded its powers in making a determination about the validity of an amended by-law about which it was not asked its views. The appellants submit that the "Tribunal's views on SBL 16 (amended) does [sic - do] not assist the Court and the [a]ppellants seek rectification accordingly".
5. Secondly, for some six reasons set out in the reply submissions, the appellants submit that the respondent's submissions about the Local Court Proceedings are not "credible".
6. Thirdly, the appellants submit that whether a by-law is "harsh, unconscionable or oppressive" and whether it ought to be declared invalid are two distinct questions, and that it is impossible to determine the second question (that is, validity) without first determining the first question (that is, "harsh, etc").
7. The appellants "seriously question" how the Tribunal could find it would not invalidate "SBL 16 (original)" without first determining whether it is harsh, unconscionable or oppressive. Thus, they submit that the reasoning of the Tribunal "lacks the requisite process and standard required of it and, accordingly, its finding cannot be accepted".
8. Finally, the appellants submit that, even if it were accepted that the relevant finding of the Tribunal was acceptable, whether or not SBL 16 (original) is harsh, unconscionable or oppressive remains a live and unresolved issue. That is, just because the Tribunal would not seek to exercise its discretion to declare invalid SBL 16 (original), the Tribunal is not discharged from its task of first determining whether it is 'harsh, unconscionable or oppressive'. The Tribunal is required to provide a proper decision in support of its findings.

1. We accept that whether the Tribunal identified the wrong issue or asked the wrong question raises a question of law, such that leave to appeal is not required: Prendergast at [13(2)].
2. However, we see no error on this question of law.
3. We have not been provided with a transcript of the Tribunal proceedings, so we do not know what discussion took place leading to the Tribunal's directions for the filing of the transcript of the Local Court Proceedings and the minutes of the meeting of the respondent held on 3 November 2023, at which meeting SBL 16 was repealed in part and amended.
4. We note that Mr Gokani for the appellants expressly conceded at the appeal hearing that the appellants were not relying on anything that occurred at the Tribunal hearing.
5. It is clear that the Tribunal, in issuing the directions it did, was cognisant that there was soon to be a general meeting of the respondent at which changes to SBL 16 were to be considered, and that the Tribunal's determination would take into account any changes approved at that meeting. If no changes at all were approved, the Tribunal then would have considered the unamended form of SBL 16. However, changes were made, being the repeal of by-law 16(4), and the amendment of by-law 16(6.5) in the manner identified above.
6. In our view, it was therefore unnecessary and of no utility for the Tribunal to consider and determine whether SBL 16 in its unamended form was harsh, unconscionable or oppressive. We take the respondent's submissions contending that there was no utility in the Tribunal considering whether SBL 16 in its original form was harsh, unconscionable or oppressive to be an acknowledgement that the appellants' liability to the respondent in respect of the costs incurred by the respondent arising from the activation of fire alarms would be determined in accordance with SBL 16 as amended, regardless of when the costs were incurred. Were that not the case, the respondent's submission that "the matters to be determined in the Local Court Proceedings have no bearing on the issues to be determined by the Tribunal" would clearly be incorrect.
7. We note that at [171] of the Primary Decision the Tribunal found that, even if it was required to consider SBL 16 in its unamended state, it would decline to exercise its discretion to declare it invalid, given that amendments were made to it on 3 November 2023. Therefore, we accept the respondent's submission that, even if the appellants were correct in their contention that the Tribunal was required to consider SBL 16 in its unamended form, the Tribunal did not fail to address that question.
8. In the circumstances, we find that Ground 6 discloses no error.

Whether the Tribunal erred by failing to take into account relevant considerations, precedent, submissions and/or evidence (often unchallenged)

1. The appellants submit that whether a relevant (that is, mandatory) consideration has been taken into account is a question of law, and that "in that regard, whether relevant precedent, submissions and/or evidence has been considered comes within that same question".
2. To make good the point, the appellants "[i]dentify the following instances whereby the Tribunal so failed":

"40.1. Regarding whether the by-law is 'harsh, unconscionable or oppressive' by reference to the reasons the Tribunal gave to declare SBL 17 invalid

40.2. Regarding the by-law as a whole

40.3. Regarding Clause 1 of the by-law

[The appellants then also invoke each of by-laws 16(2), (3), (5), (6), (7) and (8) and continue]

40.13. Regarding denial by the Respondent of the Appellants' voting rights

40.14. Regarding the harsh and arbitrary application of the by-law by the Respondent against the Appellants."

1. The appellants submit that the above errors are prejudicial to "the case of the [a]ppellants" because:

"41.1. Without taking into account relevant considerations, the conclusions reached by the Tribunal appears to be ill-formed and cannot be relied upon. The Tribunal has failed to meet the standard required by law for rendering a decision.

41.2. Had the Tribunal considered all relevant matters as summarised above, the further conclusion that the by-law is not 'harsh, unconscionable or oppressive' and ought not be found invalid as a result may not have been reached.

41.3. In circumstances where the conclusion of the Tribunal cannot be relied upon, there is a risk that the by-law is 'harsh, unconscionable or oppressive' and ought be found invalid as a result on proper consideration."

1. These submissions are then developed over a further 10 pages.

1. The respondent's submissions may be summarised as follows.
2. First, Ground 5 is misconceived, as the Tribunal did not make a discretionary decision. The Tribunal determined that SBL 16 was not "harsh, unconscionable or oppressive", which determination simply involved the application of the statutory standard to SBL 16; the finding involved no discretionary element. If the Tribunal had found that SBL 16 was harsh, unconscionable or oppressive, it would have needed to consider whether to exercise its discretion to invalidate it. However, as the condition in s 150 was not satisfied, the Tribunal's power was never enlivened. That being the case, "relevant considerations" do not enter into the matter.
3. Secondly, the matters relied upon by the appellants do not concern a misapprehension by the Tribunal as to the meaning of "harsh, unconscionable or oppressive"; they are, instead, an attempt to re-argue the merits of the matter.
4. Thirdly, even if the submissions in the preceding paragraph are incorrect, the appellants misstate the scope of the principle. It is true that a failure to take into account a relevant (that is, mandatory) consideration amounts to an error of law: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J. The consideration must be one which the decision-maker was "bound to take into account". The principle does not extend to "whether relevant precedent, submissions and/or evidence has been considered" and Prendergast provides no support for that proposition. Indeed, even where a consideration is mandatory, the cases emphasise that assessing whether it has been given proper, genuine and realistic consideration must be approached with "care to avoid an impermissible reconsideration of the merits of the decision": Prendergast at [28].
5. Reconsideration on of the merits of the Primary Decision is precisely what is sought by the submissions in support of Ground 5, without any leave having been sought.
6. Fourthly, setting aside the fact that the Tribunal was simply applying a statutory standard (such that the question does not arise in the first place), the appellants do not explain how any of the matters relied upon by them were mandatory considerations.
7. The respondent's submissions then provide, in par 18, six examples. It will suffice to set out the first, which relates to the appellants' submission in relation to SBL 17

"(i) It is not apparent how the alleged "strong similarities" between SBL 16 and SBL 17 could constitute a mandatory consideration in applying the test in s 150 to the by-law in question, SBL 16.

In any event, the Tribunal did consider that argument, and found that SBL 16 and SBL 17 were "different by-laws that operate differently and have a different purpose", SBL 17 being "a general by-law for the recovery of money owed to the Respondent", whilst SBL 16 was concerned with fire safety: Decision at [37]-[38].

The Tribunal also found that "save for statements of general principle, findings in respect of whether SBL 17 is harsh, unconscionable or oppressive are ... not relevant to a determination of whether SBL 16 is harsh, unconscionable or oppressive and ought to be declared invalid": Decision at [39].

Thus, even if alleged similarities to SBL 17 had constituted a mandatory relevant consideration in the context of a discretionary decision, the Tribunal would not have failed to consider them. There is no foundation in principle or authority for the Appellants' assertions that the Tribunal was required to undertake a lengthy process of distinguishing the two by-laws, in order to perform its statutory task: contra AS [47]-[48].

Moreover, the Tribunal's conclusion that the application of the statutory test to a different by-law was not relevant was, it is respectfully submitted, plainly correct."

1. Again, in reply, the appellants comment on each and every paragraph of the respondent's submissions in relation to Ground 5. The primary submissions made by the appellants are the following.
2. First, it is not clear what the respondent means by referring to a "statutory standard", which is an undefined phrase.
3. Secondly, the respondent's assertion that the appellants are rearguing the merits is a mischaracterisation.
4. Thirdly, the appellants do not agree with the respondent's submission that the principle that a failure to take into account a relevant (that is mandatory) consideration does not extend to "precedent, submissions and/or evidence (often unchallenged)". The appellants submit that the respondent's submission is a bald assertion and that what amounts to consideration is open to interpretation.

1. We have reached a conclusion similar to our decision in relation to Ground 6. While we give the appellants the benefit of the doubt that they have raised a question of law (the doubt being around the scope of the question raised, that is whether mandatory considerations include, for instance, submissions), we see no error by the Tribunal on this question of law.
2. We will take the appellants' submissions on SBL 17 by way of example.
3. The appellants submit, in summary, that the Tribunal failed to have regard to the reasons given for declaring SBL 17 invalid in concluding that the amended form of SBL 16 was not "harsh, unconscionable or oppressive".
4. As the respondent pointed out in its submission which we have extracted at [84] above, the Tribunal did consider that argument.
5. We do not accept that the Tribunal erred by failing to take into account mandatory considerations, and we do not accept that the failure to take into account precedent or submissions would amount to such a failure.
6. Ground 5 cannot be sustained.

Whether the Tribunal erred by applying a wrong principle of law

1. At [152] of the Primary Decision the Tribunal stated:

Because SSMA 1996 has been repealed, SBL 16(6.6) on its face no longer has any application.

1. The appellants submit that this is an error on a question of law, such that the Primary Decision should be set aside and remitted to the Tribunal.
2. The appellants relevantly submit that the Tribunal erred because:

(1) while s 109 of the SSMA 1996 has been repealed, it has been replaced by s 184 of the SSMA and thus by-law 16(6.6) continues to apply and the Tribunal should have construed by-law 16(6.6) in the context of s 184 of the SSMA. The Tribunal has not done so and instead proceeded by applying a wrong principle of law. The appellants submit that that has resulted in an arbitrary result with the Tribunal failing to "exercise its judicial power to the standard required by law for rendering a reasoned decision";

(2) further or in the alternative, the Tribunal appears to have made a "rather heroic and quite incorrect" assumption that SBL 16 (as amended) does not permit inclusion of costs, expenses and charges on a notice pursuant to s 184 of the SSMA. Contrary to that assumption, it is reasonable to interpret SBL 16(6.6) as providing a distinct right of the respondent to include such amounts.

"20 The appellants do not identify any principle of law which is said to have been wrongly applied, [and] simply assert that the Tribunal's finding was wrong and 'Clause (6.6) continues to apply' because there is a similar provision in the [SSMA] to the SSMA 1996. At best, that raises a mixed question of fact and law, and leave is required (which has not been sought);

21 In any event, the Tribunal's conclusion involved no error. The Tribunal construed clause (6.6) of SBL 16 in accordance with its terms. Where that clause referred to legislation which has been repealed, and SBL 16 contained no definition or provision which would have the effect of substituting the reference to the repealed legislation with reference to any other legislation, the Tribunal quite properly concluded that it had no ongoing operation. It is not apparent how the appellants contend that the Tribunal could have read s 184 of the SSMA ... into clause (6.6) ... Indeed, had the Tribunal read words into clause (6.6) which were not there, it would almost certainly have fallen into error;

22 The Tribunal did not make any finding (or 'heroic and quite incorrect assumption') to the effect asserted [by the appellants]. Rather, it found at [153] ... that, to the extent that SBL 16(6.6) provided that monies that were repayable could be included in a notice (thereby putting the owner on notice of the moneys payable), that was not harsh, unconscionable or oppressive, particularly given that, following the Special Resolution, the moneys could only be recovered in a court or tribunal of competent jurisdiction in any event. That finding involved no error. A notice given pursuant to s 184 of the SSMA ... is precisely that - at notice. It is not a recovery mechanism and it does not preclude an owner from selling a lot ..."

1. In brief submissions in reply, the appellants submit that they do not understand the respondent's position, do not consider that the respondent's position is correct as to the construction of SBL 16(6.6) and that the Tribunal has not properly engaged in an exercise of construction when reading SBL 16(6.6).

1. We see no substance in any of the appellants' submissions, and we accept the respondent's submissions in their entirety
2. Clause 6.6 of SBL 16 provides that moneys payable under the by-law which remain unpaid may be included on a "notice under s 109 of the SSMA". As we have noted, SBL 16 defined the term "SSMA" as the "Strata Schemes Management Act 1996 (NSW)".
3. Section 109 of the SSMA 1996 provided for the issue of a certificate by an owners corporation setting out a number of matters in relation to a lot, including the amount of any unpaid contributions, "whether there is any amount recoverable from the owner of that lot for work carried out by the owners corporation" and "whether there is any amount unpaid by an owner under a by-law to which Division 4 of Part 5 of Chapter 2 applies [that is a by-law granting exclusive use rights]". Section 109(8) provided that a certificate was "conclusive evidence, as at the date of the certificate, of the matters stated in it in favour of a person ... taking for valuable consideration ... an estate or interest in a lot ... to which the certificate relates."
4. Sections 184 and 185 of the SSMA make similar but not identical provisions.
5. Notably, neither s 109 of the SSMA 1996 nor s 184 of the SSMA made provision for the inclusion in a certificate of amounts owing to the owners corporation other than in respect of levies or the other specified limited categories. It is not apparent that clause 6.6 of SBL 16 was consistent with the SSMA 1996 or that the purported inclusion in a certificate of any amount claimed to be owing pursuant to SBL 16 would have had any effect.
6. The transitional provisions in Sch 3 to the SSMA provide, in cl 3(1):

Any act, matter or thing done or omitted to be done under a provision of the former Act and having any force or effect immediately before the commencement of a provision of this Act that replaces that provision is, on that commencement, taken to have been done or omitted to be done under the provision of this Act.

1. That provision does not have the effect that any reference in a by-law to a provision of the SSMA 1996 is to be taken as referring to the provision of the SSMA which replaced that provision. Clause 4 of Sch 3 required owners corporations to review their by-laws within 12 months of the commencement of the SSMA. It may be inferred that it was the legislative intention that that review of the by-laws would involve the updating of any outdated references to the SSMA 1996.
2. The Tribunal determined that cl 6.6 of SBL 16 was spent and had no operation after the repeal of the SSMA 1996. Even if the Tribunal was incorrect in that conclusion, and we do not consider that it was, clause 6.6 was clearly severable from the balance of SBL 16. The failure of the Tribunal to consider whether cl 6.6 of SBL 16 was harsh, unconscionable or oppressive had no impact upon the outcome of the proceedings before the Tribunal.
3. Ground 4 cannot be sustained.

Whether the Tribunal erred by failing to provide proper reasons

1. The appellants identify nine instances where they submit the Tribunal failed to provide proper reasons. Over some 13 pages of submissions, the appellants develop their argument in relation to [77], [89], [98], [104], [106], [134], [142], [155]-[158] and [163]-[169] of the Primary Decision.

1. After referring to the relevant principles, in summary, the respondent submits that:

"... the Tribunal's reasons in this case were far from falling below the minimum standard for the provision of reasons. Under the guise of an attack on the adequacy of reasons, the [a]ppellants seek, in substance, to reargue the merits of individual findings made by the Tribunal. They require leave to do so, which has not been sought."

1. In reply, the appellants deny that there is nothing unrealistic in requiring the Tribunal to "explain exhaustively" its reasons. After making various criticisms of the respondent's submissions, the appellants "leave it to the Appeal Panel" to consider its position in relation to the appellant's submissions.

1. It is common ground that the relevant principles to be applied were stated by the Court of Appeal in New South Wales Land & Housing Corporation v Orr [2019] NSWCA 231 at [66] ff.
2. The Court relevantly stated:

"66. In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal [1982] FCA 58; (1982) 40 ALR 233 at 255 (Bisley).

67. ... as Basten JA said in Resource Pacific at [48], "[t]ransparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality." ...

68. In terms of the former parameter, the quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court of tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] ... Thus even superior courts are not required to give reasons for every interlocutory decision ... and other aspects of decision making such as findings on pure credibility or matters that necessarily call for estimation or impression may require less or only allow for limited reasoning to be exposed ...

...

71. ... even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party):

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal's understanding of the applicable law, and

(c) the reasoning processes that lead the Tribunal to the conclusions it made. ...

"might not be required to 'submit the material before [it] to the most meticulous analysis and carry into [the reasons for its decisions] a detailed exposition of every aspect of the evidence and the arguments ...' or '... incorporate an extended intellectual dissertation upon the chain of reasoning ...', at least 'a basic explanation of the fundamental reasons which led the [Tribunal] to [its] conclusion ...' is necessary". ...

74. In Tatmar at 386, Mahoney JA (as he then was) observed:

... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies [1983] 1 WLR 585, at 587, 588; [1983] 1 All ER 824 at 826.

But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need to elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it." ...

76. What constitutes adequate reasoning on the part of a tribunal is also informed, in my opinion, by statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context: Pozzolanic at 287.

77. These principles include the following:

...

(iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251;

(iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 356; (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287_; Wu Shan Liang_ at 272, 291_;"_

(emphasis added)

1. We have summarised the Primary Decision above. It is 40 pages in length comprising 173 numbered paragraphs. We consider that the Tribunal provided reasons that surpassed the minimum acceptable standard. The structure of the Decision was appropriate, with the Tribunal setting out the relevant principles to be applied and making relevant findings of fact. In our view, the reasons sufficiently dealt with the issues the Tribunal had to determine, and are an entirely orthodox, and more than adequate, example of Tribunal decision writing. The nine paragraphs or groups of paragraphs in the Primary Decision which the appellants submit contain insufficient reasoning, when read objectively, state reasonably self-evident propositions. Nevertheless, the appellants complain that those propositions have not been the subject of exhaustive reasoning.
2. The appellants do not include in their submissions any cohesive or coherent analysis of why any of the paragraphs identified as containing inadequate reasons are in fact inadequate to explain the Tribunal's conclusions.
3. Rather the appellants' submissions construct straw men or preposterous hypotheticals which they submit the Tribunal has failed to address.
4. As the respondent submits, the appellants are, in substance, seeking to re-argue the merits of the Tribunal's findings.
5. It is not necessary to, and the Appeal Panel will not, address each of the identified paragraphs. It is sufficient for the purposes of these reasons to take one paragraph by way of example.
6. Paragraph [89] of the Primary Decision is as follows:

"Mindful that SBL 16 is a fire safety by law, I do not see how SBL16, by providing for any of those matters operates to restrict the enjoyment of a lot owner's rights in a way which 'could not on any rational view enhance or be needed to preserve the other lot owners' enjoyment of their lots and the scheme common property'."

1. It is not possible to understand [89] without reference to [88] which sets out the "matters" referred to in [89]. Paragraph [88] is as follows:

(1) Prevents the doing of anything that interferes, impedes or affects or is likely to interfere, impede or affect the operation of the FSS;

(2) Provides for the Owners Corporation to enter a lot to inspect, test, repair or replace the FSS following (except in the case of an emergency), the giving of notice;

(3) Entitles the Owners Corporation to investigate and determine the cause of a false alarm or call out and to have an owner indemnify it for the costs associated with any false claim or false call out plus the costs of any recovery.

(4) Provides that a claimed cost, expense or charge can only be recovered in a court or tribunal and the right of recovery is subject to a court or tribunal's determination as to reasonableness."

1. The logic of the Tribunal's reasoning is quite evident. No further explanation could reasonably be required.
2. The appellants' submissions concerning paragraph [89] were as follows:

"91.0 The Appellants submit the Tribunal has erred in the above instance because:

91.1. It is uncontroversial that any by-law that operates to restrict the enjoyment of a lot owner's rights in a way which "could not on any rational view enhance or be needed to preserve the other lot owners' enjoyment of their lots and the scheme common property" is 'harsh, unconscionable or oppressive' and may be found invalid as a result.

91.2. The position of the Appellants is that the by-law does operate to so restrict lot owners and could not on any rational view so support other lot owners or the scheme common property. The Appellants provide evidence in support of its position.

91.3. The Tribunal identifies at preceding Paragraph [88] several ways in which the by-law operates. However, nowhere does the Tribunal explain:

91.3.1. If or how the same restrict (or do not restrict) the enjoyment of a lot owner's rights

91.3.2. If or how the same enhance or are needed (or do not enhance or are not needed) to preserve the other lot owners' enjoyment of their lots and the scheme common property

91.3.3. Why the position of the Appellants as above is otherwise not correct or preferred.

91.4. For example, the Tribunal identifies that the by-law entitles the Respondent to investigate and unilaterally to determine the cause of a false fire alarm or call out. To afford the Respondent such broad power clearly operates to restrict the enjoyment of a lot owner's rights, because it deprives the lot owner its right to require liability to be determined by a Court or Tribunal in the first instance. Indeed, the right granted to the Respondent in Clause 6.4 to determine liability, whether by reference to the results of such investigation or not effectively empowers the Respondent with the judicial power to determine liability. Nowhere does the Tribunal explain if or how the same enhances or is needed to preserve the other lot owners' enjoyment of their lots and the scheme common property. Such a matter is not made clear in the Primary Decision and, rather, it is the submission of the Appellants that such a matter does not enhance and is not needed to preserve the other lot owners' enjoyment of their lots and the scheme common property and is 'harsh, unconscionable or oppressive' both in general and as a result.

91.5. Without proper reasons being provided by the Tribunal, the conclusion reached appears to be an unsupported assumption and cannot be understood. The Tribunal has failed to meet the standard required by law for rendering a reasoned decision.

92.0 The Appellants submit the above error is prejudicial to the case of the Appellants because:

92.1. The above conclusion referred to supports a further conclusion that the by-law is not 'harsh, unconscionable or oppressive' and ought not be found invalid as a result. That is because it implies the by-law is consistent with agreed-upon principles and precedence and may be widely accepted as fair and reasonable.

92.2. In circumstances where the conclusion of the Tribunal cannot be understood, there is a risk that the by-law in fact does operate to restrict the enjoyment of a lot owner's rights in a way which could not on any rational view enhance or be needed to preserve the other lot owners' enjoyment of their lots and the scheme common property, leading to the opposite conclusion that the by-law is 'harsh, unconscionable or oppressive' and ought be found invalid as a result."

1. The evidence referred to by the appellants in par 91.2 of those submissions was that the respondent had during calendar year 2021 collected "close to $1,000,000 in levies".
2. Those submissions cannot properly be characterised as identifying inadequate reasoning in the Tribunal's decision. Rather, as we have noted above, the submission is an attempt to re-argue the merits of the decision.
3. In that regard, although the appellants have not sought leave to appeal, we note that the submissions would not, in any event warrant the grant of leave to appeal.
4. The first point that may be noted about the appellants' submissions concerning [89] of the Primary Decision is that they do not acknowledge the revocation of SBL 16(4) and the amendment of SBL 16(6.5). Paragraph 91.4 of the appellants' submissions is predicated on the continued existence and operation of SBL 16(4) and the unamended version of SBL 16(6.5). As is clear from [88(4)] of the Primary Decision, the Tribunal's conclusion at [89] related to the amended version of SBL 16.
5. That apart, the appellants' submission appears to be that, because the respondent was not in dire financial circumstances, there was no need to have by-laws that facilitated the recovery from lot owners of the cost of unnecessary fire alarms and that, because the by-laws were not necessary, they were therefore harsh, unconscionable or oppressive.
6. The flaws in that submission are obvious. A by-law need not be necessary to be not harsh, unconscionable or oppressive. The mere fact that the respondent was not in dire financial circumstances did not mean that a by-law facilitating the recovery from lot owners of the cost of unnecessary fire alarms was not necessary or a reasonable provision appropriate and adapted to a legitimate end in the interests of all lot owners.
7. As we have noted, we have addressed the appellants' submissions under their third appeal ground in respect of [89] of the Primary Decision, by way of example. The submissions in respect of the other eight paragraphs or groups of paragraphs of the Primary Decision which the appellants rely upon as containing inadequate reasons follow a similar pattern.
8. We find no substance in the appellants' submissions on the third appeal ground. The Tribunal's reasons should not be over-zealously scrutinized,[1]and we find that, when read fairly and as a whole and without an "eye attuned to error", the Primary Decision does not fail to provide adequate reasons.
9. We accept that this ground raises a question of law, but we discern no error.
10. Ground 3 cannot be sustained.

Whether the Tribunal erred in its construction of SBL 16 (as amended)

1. The appellants identify nine instances where they submit the Tribunal erred in its construction of SBL 16 "as amended". Over some eight pages of submissions, the appellants develop their argument in relation to [84], [95], [111], [113], [139]-[141], [144], and [153] of the Primary Decision. They do so by reference to what the appellants submit are the relevant principles and the context and purpose of SBL 16.
2. The appellants submit that the relevant principles are:

"121.1. Consider the literal meaning of the text of the by-law

121.2. Consider the ordinary and natural meaning of the text of the by-law

121.3. Consider the context of the by-law, including its history and any extrinsic material. Any meaning of words inconsistent with the context are to be eliminated.

121.4. Consider the intended purpose of the by-law, including its history and any extrinsic material. Any meaning of words inconsistent with the purpose are to be eliminated.

121.5. Consider the provisions of the by-law on the prima facia [sic] basis that its provisions are intended to give effect to harmonious goals. In the event of inconsistency between provisions, alleviate the conflict by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the provisions. This will often require the Tribunal to determine which is the leading provision and which the subordinate provision, and which must give way to the other."

1. The appellants submit that the context and purpose of SBL 16 is:

"122.1. On 29 November 2013, SBL 16 (original) was approved by the Respondent.

122.2. The reason that SBL 16 (original) was passed was because a number of lots in Strata Plan 77109 failed to keep their fire compliances in order, with the result that the ability to obtain insurance for the same became more difficult.

122.3. Prior to SBL 16 (original) being passed, there was never any issue with fire compliances for the lots owned by the Appellants and the same issue was very carefully managed by the Appellants.

122.4. From the Appellants' perspective, there was no need for SBL 16 (original) to be passed.

122.5. It follows that the purpose of SBL 16 (original) was for the Respondent to assume complete control and authority over fire compliance and safety matters for the scheme. That includes over the entirety of the fire safety systems installed on both lot and common property of the scheme.

122.6. Prior to proliferation of the fire charges the subject of the Local Court Proceedings, the Respondent sought very little (if any) input from the Appellants in relation to management of fire safety matters over the scheme save for organising and obtaining access to its lots in order to complete the annual fire safety statement for the scheme (including the Appellants' lots). That is, in line with the terms of SBL 16 (original), and to the total exclusion of the Appellants, the Respondent actively and independently managed and completed all fire compliance matters of its own accord and volition."

1. The appellants then purport to apply those principles and submit that having regard to the context and purpose of SBL 16 the Tribunal erred in its conclusion concerning SBL 16 by reason of its conclusions in [84], [95], [111], [113], [139]-[141], [144], and [153] of the Primary Decision.

1. The respondent accepted that whether the Tribunal incorrectly construed the by-law raises a question of law.
2. However, the respondent submitted that the appellants' statement of principles, for which no authority is cited, is wrong, and that the correct principles relevant to the proper construction of the by-laws of a strata scheme were summarised by McColl JA in The Owners of Strata Plan No 3397 v Tate (2007) 70 NSWLR 344; [2007] NSWCA 207 (Tate) at [71].
3. The respondent submitted that "it would be wrong to construe SBL 16 by reference to the assertions made" in par 122 of the appellants' submissions. The respondent further submitted that those matters "were, in any event, neither common ground nor the subject of findings by the Tribunal".
4. The respondent then addressed, in detail, each paragraph of the appellants' submissions.
5. In summary, the respondent asserted that none of the appellants' submissions in relation to the identified paragraphs of the Primary Decision demonstrate any error in the Tribunal's construction of SBL 16.

1. In brief submissions in reply, the appellants said that the respondent's submissions should not be adopted by the Appeal Panel, that its statement of principles arises from FSX v Chief Commissioner of State Revenue [2024] NSWCATAP 169 at [22], and in any event is not inconsistent with the authorities relied on by the respondent.
2. Otherwise, the appellants repeated their previous submissions, and submitted that the respondent had misunderstood their submissions.

1. We accept the submission of the respondent that the principles applicable to the interpretation of the by-laws of a strata scheme are those set out by McColl JA in Tate at [71]. Those principles are:

"1. By-laws are the "series of enactments" by which the proprietors in a body corporate administer their affairs; they do not deal with commercial rights, but the governance of the strata scheme ...

2. By-laws have a public purpose which goes beyond their function of facilitating the internal administration of a body corporate; ...

3. Exclusive use by-laws may be inspected by third persons interested in acquiring an interest in a strata scheme, whether, for example, by acquiring units, or by lending money to a lot proprietor; such persons would ordinarily have no access to the circumstances surrounding their making; their meaning should be understood from their statutory context and language: ...

4. By-laws may be characterised as either delegated legislation or statutory contacts...;

5. Whichever be the appropriate characterisation, exclusive use by-laws should be interpreted objectively by what they would convey to a reasonable person: ...

6. In interpreting exclusive use by-laws the Court should take into account their constitutional function in the strata scheme in regulating the rights and liabilities of lot proprietors inter se : ...

7. Unlike the articles of a company, there does not appear to be a strong argument for saying exclusive use by-laws should be interpreted as a business document, with the intention that they be given business efficacy: ... That does not mean that an exclusive use by-law may not have a commercial purpose, ..., but due regard must be paid to the statutory context in so doing;

8. An exclusive use by-law should be construed so that it is consistent with its statutory context; a court may depart from such a construction if departure from the statutory scheme is authorised by the governing statute and if the intention to do so appears plainly from the terms of the by-law: ...

9. Caution should be exercised in going beyond the language of the by-law and its statutory context to ascertain its meaning; a tight rein should be kept on having recourse to surrounding circumstances: ..."

[Citations omitted].

1. The principles expressed in the appellants' submissions apply to the interpretation of statutes and other legislation. The substantial difference is the limited use which may be made in the interpretation of by-laws of surrounding circumstances which may not be known to all persons interested in understanding the by-laws. For that reason, to the extent that the appellants suggest that the particular history of the respondent strata plan, SBL 16, and the involvement of the appellants in issues of fire safety and the making of SBL 16 are relevant to the interpretation of SBL 16, that is not correct. Reference to such issues is precluded by the principles from Tate numbered 3 and 9 and, accordingly, the matters referred to in sub-pars 122.2, 122.3, 122.4 and 122.6 (which, as we have noted, the respondent disputes) would, even if accepted, not be relevant to the interpretation of SBL 16.
2. We have considered the appellants' submissions in relation to the Tribunal's conclusions in [84], [95], [111], [113], [139]-[141], [144], and [153] of the Primary Decision.
3. We see no substance in the appellants' submissions.
4. Again, it is not necessary to address each of the paragraphs challenged by the appellants. The appellants' submissions are prolix, repetitive and incoherent and generally fail to identify any way in which the Tribunal's interpretation of the by-laws is said to have been incorrect. We consider it sufficient to address, by way of example, the appellants' submissions concerning [95], [111], [113], and [140] of the Primary Decision.
5. The Tribunal stated at [95] that:

"SBL 16(1) prohibits the doing of things that would or a [sic - be] likely to have a negative impact on the FSS."

1. For ease of reference, we set out again the terms of SBL 16(1):

"1 An Owner or Occupier must not do anything or cause or permit any Authorised Person to do anything, in or on that Owner's or Occupier's Lot or anywhere in the Building that:

1.1 Interferes with, impedes, or affects, or is likely to interfere with, impede or affect, the operation of a Fire Safety System, or reduce the level of fire safety in the Lot or anywhere else in the Building, including but not limited to:

(a) Interference with any smoke detector or smoke alarm installed in the Lot or the Building.

(b) Use of or interference with any fire hydrant or any other fire fighting or Fire Safety System except in the case of an emergency.

(c) Tampering with fire doors or fire exits so that they remain open or ajar allowing unauthorised entry or exit to the Building.

(d) Tampering with entry doors to lots including but not limited to, removing and replacing door locks or drilling holes in the door (except with Owners Corporation's consent), propping entry doors open or otherwise interfering with the entry door so that the integrity of the door as a fire door is diminished.

(e) Tampering, touching, or hanging items from a fire sprinkler head.

1.2 Triggers a false alarm in respect of the Fire Safety System or any common property services within the strata scheme or cause the Fire Brigade or some other Authority or Service Provider or person to attend the Building for a false alarm.

1.3 (Otherwise than in an emergency) Would cause a Call-out of an Authority, a Service Provider, the Fire Brigade, or some other person at the Building."

1. The central proposition in the appellants' submissions concerning [95] was:

"124.3. Specifically, the Tribunal construes Clause 1 in the very limited, general context of fire safety. There appears to have been no consideration of the full context and purpose of the by-law as summarised above. Further, in that regard, the Tribunal does not explain:

124.3.1. If it is correct that the by-law only prohibits actions which have a "negative" impact on the fire safety of the scheme, what is the purpose of the by-law at all. It is already required of lot owners or occupiers that they not take such action as a matter of law. Such requirement derives from many sources, including contract law, property law, strata law, statute, common law and equity. Given the same, if the by-law only prohibited actions in the manner found by the Tribunal, the by-law would have no work to do at all. The reasonable conclusion in that circumstance is that the Respondent intended at the time of by-law approval to assume complete control and authority over fire safety matters of the scheme, which is not a matter automatically derived from the above sources of law.

124.3.2. Why the position of the Appellants as above is otherwise not correct or preferred

124.4 In construing Clause 1 as above, the Tribunal appears to pay little (if any) attention to the fact that the terms and operation of the by-law go far beyond anything provided for by SSMA 2015 or the model by-laws. If it is assumed that the legislature did not intend for owners' corporations to be conferred powers exceeding SSMA 2015 or the model by-laws, the construction of Clause 1 simply cannot be correct.

124.5. Without proper construction by the Tribunal, the conclusion reached appears to be premature and cannot be relied upon. The Tribunal has failed to meet the standard required by law for interpreting a by-law."

1. It is not at all clear what point the appellants are seeking to make in those paragraphs.
2. All the Tribunal is doing in [95] is to state (admittedly very shortly) a summary of the effect of SBL 16(1). We see no basis upon which it could rationally be said that this sentence illustrates a failure to apply relevant principles and overlooks the context and purpose of SBL 16. Paragraph [95] needs to be read in the context of the detailed consideration by the Tribunal of SBL 16(1) at [91]-[100].
3. It is also the case that, as the respondent submitted, there is no reason to "assume that the legislature did not intend for owners corporations to be conferred powers exceeding SSMA 2015 or the model by-laws".
4. Section 136 of the SSMA provides:

136 Matters by-laws can provide for

(1) By-laws may be made in relation to the management, administration, control, use or enjoyment of the lots or the common property and lots of a strata scheme.

(2) A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.

1. That is a broad power and not one constrained by the model by-laws, which do not form part of the SSMA. Since 2015, the model by-laws have been enacted by regulation.
2. We reject the submission that in [95] of the Primary Decision the Tribunal applied an incorrect interpretation of SBL 16.
3. Paragraphs [111]-[113] of the Primary Decision set out reasons why the Tribunal concluded that SBL 16(3) was not harsh, unconscionable or oppressive. Those pars were as follows:

"111 Firstly, on its own, SBL16 (3) it does not deal with the issue of recovery. It simply operates to require a lot owner to indemnify the respondent in respect of costs and charges incurred because of the act, negligence or omission of an owner and/or occupier, the failure by an owner or occupier to give access to their lot or a breach and subsequent enforcement of the bylaw.

112 Secondly, it is the costs and charges that the respondent says it is entitled to be indemnified for that are the subject of the Local Court Proceedings, such 31 that the existence of the facts upon which the claimed charges and costs are based is being determined by the Local Court. In that light, SBL16(3) is not operating in the way contended for by the applicants.

113 Thirdly, as noted above, the Special Resolution amended SBL 16 by making clear that the costs, expenses, and charges may only be recovered in a court or tribunal of competent jurisdiction and the right of recovery is subject to the determination of a court or tribunal of the reasonableness of the costs, expenses and charges."

1. The appellants' submissions regarding [111] were as follows:

"127.0 The Appellants submit the Tribunal has erred in the above instance because:

127.1. Clause 3 of the by-law does on its own deal with the issue of recovery. That is clear from the opening text of Clause 3 as stated below:

'An Owner and/or Occupier shall pay and indemnify the Owners Corporation against any claim, charge (including fines) or costs (including rectification costs) arising from: ...' (emphasis added)

127.2. At Paragraph [112] and following, the Tribunal proceeds to explain its reasons for the above finding, including by implying that Clause 3 relies on Clause 6.5. However, there is no requirement that the Respondent must first exercise any power, authority, duty or function conferred upon it by Clause 6, including Clause 6.5. Clause 6.5 operates despite and in addition to the powers conferred by Clause 3. In fact, it is case that Clause 6.5 relies on Clause 3 (and not vice versa). That is clear from the text of Clause 6 as stated below:

6 Despite anything contained in the bylaws and in addition to the powers, authorities, duties and functions conferred on or imposed on the Owners Corporation pursuant to the SSMA, the Owners Corporation shall have the following powers, authorities, duties and functions:

6.5 To demand from an Owner or Occupier, payment of the costs, expenses and charges referred to in clause 3...

127.3. The above was clearly submitted by the Appellants at first instance.

127.4. It follows that Clause 3 operates independently of, and without limitation by, anything contained in Clause 6.5. The findings of the Tribunal at Paragraphs [112] and following must fall away in that circumstance.

128.0 The Appellants further submit the Tribunal has erred in the above instance because, even if it were the case that Clause 3 relied on Clause 6.5 (which is denied), there are other problems with the construction adopted by the Tribunal not considered or addressed as below:

128.1. Firstly, the amendments made do not overcome the issues presented by Clause 6.4, which permits the Respondent to make unilateral determination of liability which a Court or Tribunal does not have purview over, or jurisdiction to assess, review or constrain.

128.2. Secondly, the amendments made do not address the issue that the by-law permits recovery of costs which a Court or Tribunal does not have purview over, or jurisdiction to assess, review or constrain. Such costs include those that are not legal costs, such as the costs of any repair, rectification or remediation works and the costs of any strata manager, building manager or other expert.

128.3. Thirdly, even if it were the case that a Court or Tribunal could review all heads of costs claimed by the Respondent against a lot owner (which is denied):

128.3.1 In considering any claim made relying on the by-law, the Court or Tribunal must assume it is valid and can only interpret and apply the terms of the bylaw.

128.3.2. However, in doing so, the Court or Tribunal is constrained by any earlier determination of liability by the Respondent. That leads to the potentially perverse but valid outcome of a Court or Tribunal finding costs were reasonably incurred and may be recovered even though the underlying determination of liability was not.

128.3.3. The burden being placed upon the Court or Tribunal is too heavy given the matters at hand. Considering this Strata Plan alone, which is comprised of 113 commercial lots and is required to complete a mandatory review of the FSS each year in order to obtain the AFSS and considering the fact that the Respondent is not required to justify any action it takes under the by-law to any lot owner or occupier, the volume and frequency of potential litigation is unpalatable.

128.4. It is readily apparent from the above that any Court or Tribunal approached to assist with review of costs claimed pursuant to the by-law will encounter great difficulty making its decision. That is the very position the Court finds itself in the Court Proceedings and the Appellants submit the same as yet further evidence of the perverse (but valid) outcomes of this by-law."

1. In respect of [113], the appellants repeat those submissions.
2. As the respondent submits, those submissions "wrongly conflate" two concepts, a lot owner's obligation to pay, imposed by SBL 16(3), and the recovery of such amounts, which is dealt with by SBL 16(6.5). We do not accept that SBL 16(3), properly construed, purports to confer upon the respondent the capacity to impose liability on lot owners, independently of the requirement of SBL 16(6.5), that any amount claimed be subject to testing for reasonableness by a court or tribunal.
3. Moreover, the appellants' submissions purport to challenge, out of context, two paragraphs of the eight paragraphs of the Primary Decision ([108] - [115]) where the Tribunal considers SBL 16(3).
4. Those paragraphs include [114] and [115] where the Tribunal said:

114 That is to say, if an amount claimed is disputed, the respondent would need to prove in a court or tribunal of competent jurisdiction, its entitlement to the amount claimed by way of indemnity by establishing, for instance, that it was caused by or arose as a consequence of:

(1) the act, negligence or omission of the owner and/or occupier;

(2) the failure by an owner or occupier to give access to their lot; or

(3) a breach and subsequent enforcement and that the cost, charge or expense was reasonable.

(1) The setting up of a regime to implement and enforce the bylaws and to claim the costs associated with a non-compliance with them is not unreasonable, and in my view, is necessary to ensure the bylaw has effect.

(2) The indemnification provisions only apply when there has been a breach and/or costs have been incurred as a consequence of an act, negligence or omission of the Owner because of, for instance, a false fire alarm, a breach of the bylaw, or failure of the Owner to give access to their lot where required.

1. The appellants' atomistic approach of selecting only two of the paragraphs of the Tribunal's chain of thought and reasoning in [108] and [115] fails to take into account [108]-[115] as a whole.
2. Furthermore, we agree with the respondent's submission that par 128 of the appellants' submissions is, again, an attempt to re-argue the merits of the appellants' case.
3. Paragraph [140] of the Primary Decision is part of the Tribunal's reasoning as to why SBL 16(6.4) is not harsh, unconscionable or oppressive. It is as follows:

"140 Second, where an amount claimed is in dispute it can only be recovered in a court or tribunal which would then determine liability, which was (in the context of the Local Court Proceedings) what was occurring even before the Special Resolution."

1. The appellants' submissions concerning [140] were:

"136.1. Clause 6.4 is not dependent on, nor limited by, anything contained in Clause 6.5. That is for the same reasons submitted at Items 127.0 - 128.0 above. A Court or Tribunal may only review the reasonableness of the cost, expenses and charges claimed. It may not, however, review the reasonableness of the underlying determination of liability itself. Where a Court or Tribunal cannot go behind, and is strictly subject to, any determination of liability by the Respondent, the protections the Tribunal suggests are afforded to lot owners and occupiers in requiring the parties to engage in a Court or Tribunal process are simply not there. The findings of the Tribunal at Paragraph [140] must fall away in that circumstance.

136.2. Without proper construction by the Tribunal, the conclusion reached appears to be erroneous and cannot be relied upon. The Tribunal has failed to meet the standard required by law for interpreting a by-law."

"The Appellants' submissions in relation to this paragraph (at AS [136]) again appear to conflate determining who is responsible for an amount and recovery of that amount. The suggested limitation on what a Court or Tribunal may review is without foundation: the Respondent is not afforded the ability to conclusively determine anything. It follows that there is no substance in the Appellants' complaint."

1. We accept the respondent's submissions on the interpretation of SBL 16(6.4). That clause does not explicitly provide that the respondent's assessment ("determination") of who is responsible for a call-out or alarm is to be conclusive so as to preclude a court or tribunal from considering whether a lot owner determined to have been responsible was in fact responsible and liable for the cost of the call-out or alarm.
2. Consistent with the law's preference for construing documents so as to preserve their validity, expressed in the maxim ut res magis valeat quam pereat, and the presumption against ousting the jurisdiction of the courts, SBL 16(4) should not be construed as providing that a determination by the respondent of responsibility for a call-out, alarm or service is conclusive.
3. Accordingly, we do not consider that the Tribunal adopted an erroneous interpretation of SBL 16(6.4).
4. The appellants' submissions concerning other paragraphs of the Primary Decision follow a similar pattern of raising trivial and irrelevant issues and seeking to re-argue the merits of the case rather than identifying any respect in which the Tribunal has misunderstood or misconstrued individual clauses of SBL 16. It is not necessary to canvass those submissions at length. We do not accept them.
5. Ground 2 must be rejected.

1. The final ground of appeal as stated in the Amended Notice of Appeal is:

"Did the Tribunal err in finding that ... SBL 16 was not 'harsh, oppressive or unconscionable' including in relation to:..."

1. The Amended Notice of Appeal then refers to [77]-[90], [91]-[100], [101]-[107], [120]-126], [127]-[169], [129]-[135], [136]-[142], [143-[149], [150]-[154], [155]-[162] and [163]-169] of the Primary Decision.
2. In their written submissions the appellants appear to seek to restate (or clarify) this ground of appeal as being that the Tribunal's decision was "so unreasonable that no reasonable decision-maker would make it". We accept that, so stated, Ground 1 raises a question of law.
3. The appellants submitted that the paragraphs referred to in the Amended Notice of Appeal were "instances whereby the Tribunal so failed".
4. Paragraph 150.0 of the appellants' submissions suggests that the appellants "address each of the above instances [being the 89 paragraphs of the Primary Decision referred to in the Amended Notice of Appeal] in detail below".
5. But the submissions do no such thing.
6. Under the heading "Grounds 2 to 5", the appellants submit that the Tribunal erred in its findings in relation to SBL 16 by reason of each of the matters the subject of appeal Grounds 2 to 5, and that "[b]y making any one of the above errors, the Tribunal, even acting reasonably thereafter or otherwise, could not have reached a reasonable conclusion in relation to SBL 16".
7. We find that reasoning hard to understand. In any event, we have rejected each of Grounds 2 to 5.
8. The appellants then submit "the above error" is prejudicial to their case because:

"152.1. Without confidence that the Tribunal acted reasonably in making its decision, the conclusions reached appear to be erroneous and cannot be relied upon. The Tribunal has failed to meet the standard required by law for interpreting a by-law.

152.2. Had the Tribunal acted reasonably in considering SBL 16 as above, the further conclusion that the by-law is not 'harsh, unconscionable or oppressive' and ought not be found invalid as a result may not have been reached.

152.3. In circumstances where the conclusion of the Tribunal cannot be relied upon, there is a risk that the by-law in fact is 'harsh, unconscionable or oppressive', leading to the opposite conclusion that the by-law ought be found invalid as a result."

1. These submissions are circular and without substance.
2. The appellants then submit, under the heading "SBL 16 as a whole", that the Tribunal erred because:

"154.1 Even if each of the components of SBL 16 in isolation was rightly found not to be harsh, unconscionable or oppressive (which is denied), taken as a whole, the operation of SBL 16 is still 'harsh, unconscionable or oppressive' and ought be invalid as a result";

...

154.2 Any interaction between the respondent and a lot owner or occupier in a scheme gives rise to rights and obligations on both sides. However there are several instances whereby the Tribunal takes no issue with the fact that the Respondent is provided an explicit power, authority, duty or function to do something in the interests of fire safety but a lot owner or occupier has no reciprocal explicit power, authority, duty or function to reasonably verify, defend or properly engage in the process. It is not palatable for a lot owner or occupier to, at every level, be required to approach a Court or Tribunal to verify, defend or properly engage when the owners' corporation has a right to do so in the first instance. The category of the by-law as relating to 'fire safety' as thereby being sui generis in some manner or by extension (see, inter alia, Paragraphs [74], [89] and [168] of the Primary Decision) and thereby allow a greater imbalance is not correct. It is not a basis to permit such a one-sided by-law with such an incredible imbalance of power and is 'harsh, unconscionable or oppressive' as a result.

154.3 The Tribunal does not have appeared to consider the by-law in the practical circumstances of the matter referred to at Item 61.1.3, wherein the respondent has delegated management of the fire compliance process to BSM [the strata manager], who in turn delegated that process to EFS [Essential Fire Services]. Whether or not that is accepted, it is obvious that is a pathway open to the [respondent]. It is trite to note, in that regard, not a single piece of evidence has been provided by any strata committee member of the respondent at all....

154.4 Relatedly, the by-law gives rise to obvious moral hazard issues by restricting what lot owners can do with fire safety systems located on their lots, including engaging their own service providers, and leaving matters of fire safety to the owners corporation but, in the event of failure of the owners corporation in meeting their obligations, putting the costs of the same back on the lot owners. That is not fair and balanced but rather 'harsh, unconscionable or oppressive';

154.5 As a fundamental matter, the terms of the by-law are unclear, ambiguous and confusing. This leads to various problems including ... a total imbalance of rights and obligations ...

154.5.1 The by-law makes clear what lot owners or occupiers cannot do in relation to the FSS [fire safety systems]. However it does not make clear what lot owners or occupiers can do in relation to the FSS. This is problematic because if action required to be taken is not taken, or action thought to be required is wrongly taken, the costs consequences are potentially very severe ..."

1. Paragraph 61.1.3 of the appellants' submissions, referred to in par 154.3, stated:

"Further thereto, a real consideration in the circumstances is whether the failure to expressly permit a lot owner to also receive the relevant reports actually prejudices other lot owners' enjoyment of their lots and the scheme common property. In the instant circumstances, it is quite clear that the owners' corporation delegated management of the fire compliance process to BSM, who in turn delegated that process to [Essential Fire Services]. No evidence whatsoever has been provided of overview by BSM or [Beaver Fire Services], who were not competent and subsequently discharged. That lack of oversight and incompetence could have been detected at an earlier stage had the relevant reports been shared, to the benefit of all lot owners. The Appellants provide unchallenged evidence in support of the above."

1. The respondent submitted that this ground does not raise any question of law, and simply challenges the Tribunal's ultimate finding. The respondent further submitted that, in any event, the question of the reasonableness of the decision and the reasonable decision maker was not raised in the Amended Notice of Appeal.
2. The respondent submitted that, even if the appellants were permitted to amend Ground 1, their submissions add nothing to their preceding submissions, and repeat contentions which were rejected by the Tribunal in its detailed construction of the by-law. The respondent submitted that none of the matters relied by the appellants is capable of establishing that the Tribunal's Decision was so unreasonable that no reasonable decision-maker would have made it. Indeed, the Tribunal was plainly correct to conclude that SBL 16 was not harsh, unconscionable or oppressive in so far as it prohibited lot owners from interfering with the fire safety systems and regulated the consequences of non-compliance.

1. In summary, the appellants in reply submit that they do not understand the respondent's submissions and otherwise repeat their submissions in chief.

1. We see nothing of any substance in the appellants' submissions, which are confusing, incoherent, circular and argumentative. They fundamentally fail to acknowledge or comprehend the objective of SBL 16 and the importance given to fire safety systems by the SSMA (eg, ss 109(5)(d) and 123) and the Model by-laws for residential strata schemes in Sch 3 to the Strata Schemes Management Regulation 2016 (NSW).
2. The overreach or exaggeration of the submissions is amply demonstrated by noting that the effect of the appellants' submissions is that in 89 of the 173 paragraphs of the Primary Decision the Tribunal made a decision that was so unreasonable that no reasonable decision maker would make it.
3. Ground 1 must be rejected.

1. It is difficult to escape the impression that, with each of the grounds of appeal, the appellants are attempting to run their case again.
2. This is impermissible. As the Appeal Panel stated in Noori v JMG Auto Parts Pty Ltd [2022] NSWCATAP 250:

74. ... an appeal to the Appeal Panel does not provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. ...

75 To put the matter another way, as indicated in the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website):

... an appeal is not an opportunity to have a second go at a hearing."

1. For the above reasons, we reject each ground of appeal, and dismiss the appeal.

1. In its submissions, the respondent foreshadowed an application for costs.
2. In their submissions in reply, the appellants say that the approach of the respondent, that is to file submissions in due course, is inconsistent with the directions of the Appeal Panel. Relevantly, the Appeal Panel had, in advance of the hearing, issued the following direction:

"If any party wishes to make an application for costs of the appeal, that party is to lodge with the Appeal Registry and give to the other party any submissions on costs at the same time as their submissions in relation to the appeal."

1. The appellants submit that to now allow the respondent to file submissions on costs would be inconsistent with that direction and be to their "clear prejudice".
2. The appellants further submit that:

(1) all the time, effort and expense incurred by the parties and the Tribunal in conducting these appeal proceedings was avoidable by the respondent;

(2) the respondent ought meet its own costs as well as the costs of the appellants regardless of the outcome of these proceedings;

(3) any submissions of the respondent ought to be disregarded in favour of the submissions of the appellants by the Appeal Panel and the costs of the appeal met by the respondent regardless of the outcome.

1. We do not accept that the effect of the direction of the Appeal Panel is that any party seeking costs is forever shut out from bringing an application. That is for the simple reason that the outcome of the appeal can never be known prior to publication of the Appeal Panel's reasons, and there may be issues in the reasons for decision which the parties could never have foreseen and thus not known to address. Further, parties regularly make "Calderbank" offers to each other, even on appeal, and it would be inappropriate for those offers to be made known to the Appeal Panel prior to the appeal hearing.
2. We also note that procedural fairness would require that the appellants have the opportunity to respond to the trenchant criticism of their submissions which we have made in these reasons.
3. We will give directions that:

(1) the respondent provide submissions (and if necessary evidence) on costs within 14 days;

(2) the appellants may respond within a further 14 days; and

(3) the respondent may reply within a further seven days.

(4) submissions in chief are to be limited to five pages and submissions in reply to three pages.

1. We propose to deal with the question of costs "on the papers" and without a hearing. We note that the parties agreed at the conclusion of the hearing of the appeal that questions of costs could be determined without a further hearing.

(1) The appeal is dismissed.

(2) The respondent is to provide submissions, limited to five pages, (and if necessary evidence) on costs within 14 days from the date of these orders.

(3) The appellants may file submission in response, limited to five pages, within 28 days from the date of these orders.

(4) The respondent may file submissions in reply, limited to three pages, within 35 days from the date of these orders.

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.

[1] SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]; referred to in Ballas v Department of Education (State of NSW) [2020] NSWCA 86 at [79]