Griffinchuk No 1 Pty Ltd ATF Griffinchuk Family Trust v The Owners – Strata Plan No 92745

Dyldam Developments Pty Ltd v The Owners - Strata Plan No 85305 [2019] NSWCATAP 229 Frampton v The Owners - Strata Plan No 35012; The Owners - Strata Plan No 35012 v Frampton [2019] NSWCATCD 15

Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297; [1994] HCA 6

Grabovsky v Department of Communities and Justice [2025] NSWCATAP 192

Mamassalski & Riley (No 3) [2022] FedCFamC1F 562

Owners Strata Plan No 74232 v Tezel [2023] NSWCA 36

Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69

Preston v Diaspora Holdings Ltd v Owners Corporation of Strata Plan 68608 [2019] NSWSC 651

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

Vickery v The Owners - Strata Plan No 80412 [2020] NSWCA 284

Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113

Griffinchuk No 1 Pty Ltd ATF Griffinchuk Family Trust (Appellant)

1. This is an appeal from the decision of the Consumer and Commercial Division of the Tribunal (Tribunal) of 14 February 2025 in application 2024/00164282 (Primary Decision).
2. In application 2024/00164282, the appellant sought compensation for water ingress including compensation for inconvenience and economic losses suffered. The economic losses included relocation of the appellant's lessee, expenses related to the sale of the subject lot including commission paid and marketing, legal fees for the sale and purchase of the lot, stamp duty on the purchase of new premises and compensation for liquidated damages payable to appellant's lessee.
3. The matter was listed for a preliminary hearing as to the Tribunal's jurisdiction on 19 December 2024.
4. For the reasons given in the Primary Decision, the Tribunal dismissed the appellant's application. The Tribunal found it had no jurisdiction to hear and determine the matter, as the appellant did not meet the relevant definition of "interested person" in s 232 of the Strata Schemes Management Act 2015 (NSW) (SSMA).
5. For the following reasons, we see no error by the Tribunal, with the result that the appeal should be dismissed.

1. After setting out a detailed chronology of events, the appellant identifies three grounds of appeal.
2. The first ground of appeal is stated as follows:

The delay caused in the [appellant] undertaking the steps from 9 November 2023 to 21 December 2023 was due to the Registrar's failures set out at paragraph 13 above. These failures involve a failure to turn her mind to her statutory duty in section 227(1)(b) and therefore a failure to address the case put. The considerations that the Registrar did take into account at paragraph 12 above,[1] were irrelevant consideration. This conduct on the Registrar's part constitutes very material errors of law.

1. The second ground of the appeal, in the alternative, is that the application lodged by the appellant on 3 May 2024 was not a new application but a relodging of the application of 9 November 2024 (sic - 2023) with the evidence of mediation requested. The appellant submits that the Registrar's administrative action of prematurely closing the file on 30 November 2023 does not negate the right in fact of the appellant's original lodgement.
2. The third ground of appeal is that the Tribunal erred in its construction of ss 4(d) and 226 of the SSMA.
3. In addition, the appellant also submitted that the Primary Decision was not fair and equitable because:

(1) the Tribunal misconstrued s 232 of the SSMA;

(2) this erroneous construction of the legislation acted to deny the appellant its rights at law to claim for the breaches that had occurred while it was a unit owner;

(3) any decision that is wrong at law is unfair and inequitable;

(4) the appellant had continuous dialogue with the respondent in an effort to resolve the matter, even to the point of prior Tribunal proceedings in which the respondent admitted liability and thereafter;

(5) the appellant had sought mediation with the respondent prior to November 2023;

(6) it was unlawful, unfair and inequitable for the Registrar to have rejected the application of 9 November 2023 and require that the appellant further attempt mediation through NSW Fair Trading;

(7) the findings of fact at [42]-[44] of the Primary Decision are unfair because they fail to address the relevant evidence and, on their face, are contrary to logic.

1. Finally, the appellant stated in the Notice of Appeal that it is contrary to the public interest in promoting access to justice to adopt a construction that "reads the Tribunal out of jurisdiction" and "forces the parties into a cost, evidence and rules-based jurisdiction".
2. However, in its submissions filed 20 August 2025, after we allowed an adjournment of the appeal hearing at the request of the appellant, the appellant stated that its grounds of appeal were as follows:

(1) whether the Tribunal has incorrectly interpreted and applied s 226 of the SSMA in its finding that the appellant was not an 'interested person' entitled to lodge its claim with the Tribunal after the date of sale of the unit in question on 21 December 2023, for compensation arising from breaches in the period prior to the sale (when the appellant remained the registered proprietor and therefore an 'interested person');

(2) whether the Registrar's[2] decision to reject the lodgement of the appellant's claim on 9 November 2023 was void at law for jurisdictional error by reason of:

(a) the failure to correctly construe and apply s 227 of the SSMA in appellant's claim and not s 227(1)(b), being the provision relied upon by the appellant, and in so doing failed to address the case as put and to exercise the statutory power accordingly;

(b) the inflexible application of a "mere policy "of the Tribunal to require a report from Fair Trading before determining that the respondent had refused to participate in mediation under s 227(1)(b);

(3) whether the Tribunal[3] fell into error of law:

(a) in finding that the Registrar's decision was a lawfully valid one

(b) in coming to findings of fact and law on the evidence before the Registrar, that the respondent had not refused to participate in the mediation within the meaning of s 227(1)(b) of the SSMA;

(c) in determining whether the Registrar failed to take into account relevant evidence in coming to its findings and arrived at an unreasonable decision.

1. We note that the appeal was first listed for hearing on 23 June 2025. We gave the appellant an adjournment of the hearing as its counsel Adj/Prof Anforth AM explained the appellant had not been able to obtain copies of documents it had filed for the Tribunal hearing. Apparently, the appellant was not legally represented at the Tribunal hearing, had failed to retain a copy of its materials for itself, and we were told that the tendered material could not be located by the Registry of the Consumer and Commercial Division of the Tribunal.
2. As the adjournment was not opposed by the respondent, we allowed the adjournment so as to enable the appellant the chance to locate the documents and file them with the Appeal Panel Registry.
3. Accordingly, along with the 150 pages of materials filed by the appellant on 5 May 2025,[4] we also had before us:

(1) a transcript of the Tribunal proceedings, filed 20 August 2025;

(2) an affidavit of the appellant's director, Mr Gary Woodbridge, affirmed 7 August 2025, filed 20 August 2025;

(3) a 34 page bundle of documents titled "Tender Book", also filed 20 August 2025;

(4) a 124 page bundle of material tilted "Appendices to Submissions", filed 25 August 2025.

1. We also had the benefit of submissions of the appellant:

(1) in reply to the respondent's submissions of 28 May 2025, dated 29 April 2025 in the name of but not signed by Adj/Prof Anforth AM;

(2) in reply to the respondent's submissions of 28 May 2025, dated 18 June 2025, filed 23 June 2025, signed by Mr Woodbridge;

(3) filed 20 August 2025.

1. The respondent filed its Reply to Appeal on 31 March 2025.
2. In summary, the respondent submitted that none of the grounds of appeal disclosed a discernible ground of appeal in respect of a question of law, and were variously argumentative, misconceived or an attempt by the appellant to reargue the issues before the Tribunal.
3. In relation to the appellant's "not fair and equitable submissions", the respondent submitted that:

(1) to the extent that an error of construction in s 232 of the SSMA is made, the respondent accepts that this is capable of being an error on a question of law;

(2) the stated basis of the challenge does not disclose an error on a question of law and is argumentative;

(3) the Tribunal's finding in relation to s 232 is based on the appellant not being "an interested person, original owner or building manager" (Primary Decision at [23]), and that there is no error of construction by the Tribunal.

1. We also had the benefit of a number of aides memoire prepared by the respondent's solicitor, Mr Ton, which included:

(1) a schedule of use of "owner" in respect of applications under the SSMA;

(2) a chronology of "mediation communications".

1. We also had the benefit of submissions of the respondent filed 28 May 2025.

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 clarified and 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. The Appeal Panel concluded at [33] that, "plainly", the categories (of questions of law) are not closed.

1. Before considering the grounds of appeal, it is appropriate to briefly summarise the structure and content of the Primary Decision.
2. At [1]-[5], the Tribunal briefly sets out an introduction to the application. This is followed, at [6]-[14], with the background to the application.
3. At [15]-[20], the Tribunal then set out an overview of the appellant's application. In summary, this was:

(1) sections 4, 106 and 232 of the SSMA do not exclude jurisdiction;

(2) sections 106(1) and 106(5) of the SSMA create a species of statutory right that resides[5] in an owner for the time being when the breaches occur at the point they first become aware of the losses: Vickery v The Owners - Strata Plan No 80412 [2020] NSWCA 284; Owners Strata Plan No 74232 v Tezel [2023] NSWCA 36;

(3) principles of statutory interpretation mean that Parliament is presumed not to have "abrogated vested or accrued right[s] of a proprietary nature without express language to that effect": Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297; [1994] HCA 6;

(4) the use of the word "must" in s 106(1) of the SSMA imposes a strict liability on the owners corporation to repair common property;

(5) there is no monetary jurisdictional cap on the Tribunal's power in claims brought under s 10 of the SSMA.

1. At [21], the Tribunal briefly summarises the respondent's submissions, noting that the respondent submitted that the appellant did not meet the definition of "interested" person under the SSMA as they were no longer owners or occupiers in the strata plan: Frampton v The Owners - Strata Plan No 35012; The Owners - Strata Plan No 35012 v Frampton [2019] NSWCATCD 15; Mamassalski & Riley (No 3) [2022] FedCFamC1F 562.
2. At [22]-[30], the Tribunal sets out the relevant legislative provisions and principles, concluding:

31 The Tribunal is satisfied that the rights under ss 106(1) and 106(5) accrue with an owner when the breaches occur at the point they first become aware of the losses. However the Tribunal is not satisfied that these rights are abrogated without express language. The lot owners retain these rights, however the Tribunal does not have jurisdiction to determine the claim. The language "for the time being" is an express term which parliament have used to abrogate the right of parties to apply to the Tribunal to determine the matter.

32 Unlike Georgiadis v AOTC [1994] HCA 6, there remains a forum for former lot owners to pursue their rights, but it is not the Tribunal under s 232 of the Act.

33 There is also no dispute as to the strict liability of owners corporations under s106(1), however this is not determinative of the intention of the section to empower the Tribunal to be able to hear applications from former lot owners.

34 The case of Frampton v The Owners - Strata Plan No 35012 involved a lot owner who sold her lot after the proceedings commenced but before they were completed. Accordingly it is not analogous to this situation, and supports the contention that an lot owner must be a lot owner at the time they commence proceedings.

35 The case of Massalski & Riley (No 3) was a family court matter, which incidentally referenced other Tribunal proceedings and is not relevant to the issue in dispute here.

36 For these reasons, the Tribunal is satisfied that under the Act, there is a requirement for the lot owner to be the owner at the time they lodge their application with the Tribunal.

1. At [37]-[47], the Tribunal sets out its analysis of whether the appellant had standing to bring the application. The Tribunal concluded at [48] that since the appellant was not a lot owner, but rather a former lot owner at the time the application was filed, the appellant did not meet the definition of an "interested person" for the purposes of s 232 of the SSMA, and dismissed the application.

1. We set out the relevant provisions of the SSMA.
2. Section 4:

...

interested person - see section 226.

...

106 Duty of owners corporation to maintain and repair property

(1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.

(3) This section does not apply to a particular item of property if the owners corporation determines by special resolution that -

(a) it is inappropriate to maintain, renew, replace or repair the property, and

(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

(4) An owners corporation may defer compliance with subsection (1) or (2) in relation to damage to common property until after the taking of action if -

(a) the action is taken by the owners corporation against an owner or another person in relation to the damage, and

(b) the deferment will not affect -

(i) the safety of buildings, structures or common property in the strata scheme, or

(ii) a person's access to or use of the common property or a lot in the strata scheme.

(5) An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.

(6) An owner may not bring an action under this section for breach of a statutory duty more than 6 years after the owner first becomes aware of the loss.

(7) This section is subject to the provisions of any common property memorandum adopted by the by-laws for the strata scheme under this Division, any common property rights by-law or any by-law made under section 108.

(8) This section does not affect any duty or right of the owners corporation under any other law.

226 Interested persons

(1) The following persons are interested persons for the purpose of making an application to the Tribunal under this Act -

(a) the owners corporation,

(b) an officer of the owners corporation,

(c) a strata managing agent for the scheme,

(d) an owner of a lot in the scheme, a person having an estate or interest in a lot or an occupier of a lot,

(e) if the strata scheme is a leasehold strata scheme, the lessor of the scheme.

(2) The interested persons for the purpose of making an application to the Tribunal under this Act relating to a strata scheme for a part strata parcel also include the following -

(a) the owners corporation or a strata managing agent for, an owner of a lot in, a person having any other estate or interest in a lot in, or an occupier of a lot in, any other scheme affecting the building,

(b) any other person for the time being bound by any strata management statement for the building.

227 Certain applications cannot be accepted without prior mediation

(1) A registrar must not accept an application made to the Tribunal under this Act unless -

(a) mediation by the Secretary under Division 2 or otherwise has been attempted but was not successful, or

(b) a party refused to participate in the mediation, or

(c) the registrar considers that mediation is unnecessary or inappropriate in the circumstances.

(2) The registrar must inform an applicant that the applicant should arrange for mediation if the registrar rejects an application under this section.

(3) The applicant may arrange for mediation under Division 2 or otherwise.

232 Orders to settle disputes or rectify complaints

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

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

...

(emphasis added)

1. At the outset of its submissions, the appellant submits that the principles set out in ss 3, 36 and 38 of the NCAT Act are relevant.
2. As to s 3 of the NCAT Act, we note that the objects of the NCAT Act include:

(1) ensuring that the Tribunal is accessible and responsive to the needs of all of its users (NCAT Act, s 3(c));

(2) enabling the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible (NCAT Act, s 3(d));

(3) ensuring that that the decisions of the Tribunal are timely, fair, consistent and of a high quality (NCAT Act, s 3(e));

(4) ensuring that that the Tribunal is accountable and has processes that are open and transparent (NCAT Act, s 3(f));

(5) promoting public confidence in tribunal decision-making in the State and in the conduct of Tribunal members (NCAT Act, s 3(g).

1. The appellant submits that in Preston v Diaspora Holdings Ltd v Owners Corporation of Strata Plan 68608 [2019] NSWSC 651 at [249], the Supreme Court held that the real issues referred to in s 3(d) are the substantive ones not procedural ones. The appellant submits that the substantive issues in this case are whether the respondent has breached its statutory and contractual duty to repair, which the respondent has "not even denied".
2. The appellant submits that the purpose or intent of s 3 was addressed by the Court of Appeal in Attorney General for New South Wales v Gatsby [2018] NSWCA 254 where the Court of Appeal stated at [224]:

Nor is this a matter of mere semantics; the objects of the Civil and Administrative Tribunal Act demonstrate that, as was the case with many of the 22 tribunals and other bodies which were combined to create NCAT, a significant purpose of the creation of NCAT was to provide an alternative mechanism for dispute resolution, allowing persons with disputes in particular categories to obtain a resolution outside the formal court structure. Thus, the first object was to establish a tribunal to provide a single point of access "for most tribunal services in the State"; the third object was to ensure that the Tribunal "is accessible and responsive to the needs of all of its users" and the fourth was to enable the Tribunal to resolve "the real issues in proceedings justly, quickly, cheaply and with as little formality as possible". There are other objects, but the intention to provide a tribunal separate from the court system is nevertheless manifest.

1. The appellant submits that the Court of Appeal explicitly noted that one of the purposes of s 3 is to avoid forcing citizens into the court systems with its costs in time and money, but "this is precisely the outcome that the present construction of the legislation in question will have".
2. The appellant then addresses s 36 of the NCAT Act, noting that s 36 provides:

36 Guiding principle to be applied to practice and procedure

(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The Tribunal must seek to give effect to the guiding principle when it -

(a) exercises any power given to it by this Act or the procedural rules, or

(b) interprets any provision of this Act or the procedural rules.

...

(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

...

9 Section 36 explicitly requires that the Tribunal interpret its applicable legislation in a manner that facilitates the quick and cheap disposition of cases. The idea is that where two constructions of a legislative provision are reasonably open, that the Tribunal take the relevant construction which facilitates the quick and cheap disposition of cases, and does not force citizens into the slower and more expensive court systems.

10 This same principle forms part of the common law of statutory interpretation which requires a beneficial construction of a remedial statute.

11 In short, the Tribunal should approach the statutory interpretation issue in the spirit of reading itself into jurisdiction rather than a goal of reading itself out of jurisdiction.

1. The appellant then sets out s 38 of the NCAT Act, noting that s 38 provides:

38 Procedure of Tribunal generally

(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

...

(4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(5) The Tribunal is to take such measures as are reasonably practicable -

...

(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

...

(1) in terms of the substantial merits of the case, the respondent has not denied liability for its failure to carry out repairs and it has already admitted liability in the Tribunal proceedings;

(2) the repairs required by a Deed of Settlement to be carried out by the respondent were not carried out and nor where the repairs for subsequent leakages. This is the real issue, and the substantial merits, to be determined;

(3) the appellant is the aggrieved party who has suffered loss from the respondent's failure to repair. The respondent's actions to date have been directed to procedural obstruction and delay. Even if the Appeal Panel determines that it has no jurisdiction, the matter is still actionable in the District Court at which time the respondent will be forced to either admit or deny liability in the face of the evidence. By then, the appellant will have been subjected to the costs and delays in the court's process (in addition to the costs and delays incurred in the current proceedings before the Tribunal);

(4) the effect of denying jurisdiction within the Tribunal is to defeat the right of the appellant to proceed in the less costly and more expeditious processes of the Tribunal and to be forced into a more costly jurisdiction.

1. In our view, the relevance of those submissions to s 38 of the NCAT Act is not readily apparent.
2. We now turn to the appellant's three grounds of appeal

Whether the Tribunal has incorrectly interpreted and applied s 226 of the SSMA

1. The appellant's first ground of appeal was whether the Tribunal erred in its finding that the appellant was not an "interested person" entitled to lodge its application with the Tribunal after the date of sale of the unit in question on 21 December 2023, for compensation arising from breaches in the period prior to the sale (when the appellant remained the registered proprietor and therefore an "interested person'".
2. The appellant relied on its submissions made to the Tribunal on this issue. These were sufficiently summarised in the Primary Decision and are set out above.
3. The submissions were amplified by the appellant's counsel at the appeal hearing. Counsel suggested there were two interpretations open to the Tribunal, the first being the one ultimately taken by the Tribunal. The second, and the one argued for by the appellant, was that "for the time being", means that at the time the cause of action arose, "you are recorded in the Register".
4. The Tribunal, appropriately, found that it was necessary to consider the definition of interested person, set out in s 226 of the SSMA. That is set out above. It includes "an owner of a lot in the scheme, a person having an estate or interest in a lot or an occupier of a lot": SSMA, s 226(1)(d).
5. The Tribunal noted (Primary Decision at [25]), that s 4(a) of the SSMA defines owner as:

....each person for the time being recorded in the Register as entitled to an estate in fee simple in the lot (in the case of a freehold strata scheme) or as entitled to a leasehold estate in the lot (in the case of a leasehold strata scheme).

(emphasis added)

1. As to the words, "for the time being", the Tribunal concluded:

26 ... Giving this phrase its natural interpretation, it requires the applicant to be a lot owner at the time it commenced the proceedings to be considered a "owner" under the [SSMA].

27 Turning to the lot owners' specific submissions, there is no dispute that the lot owner is only claiming compensation for losses accruing prior to the sale of the Lot.

28 The language "for the time being" in the definition of "owner" suggest there is a limit to the definition- that is, that there must be a nexus in time between when the applicant is an owner, and the specific section using the defined term 'owner' within the [SSMA].

29 Whilst s106 is a remedial provision, it does inherently have limitations such as the time limit for making claims as set out in s 106(6). Nonetheless, the reading of s 106 and the references to "owner" in ss 106 (5) and 106 (6) of the [SSMA] is not the prohibitive provisions in this instance. It is the power of the Tribunal under s 232 which limits the Tribunal's ability to make the orders sought to lot owners "for the time being", which links to the time the application was filed.

30 The Tribunal is not satisfied that interpreting the jurisdiction in s 232 of the [SSMA] alienates, interferes of alters vested statutory rights or common law rights. The right to make a claim may remain, the difference is that the Tribunal is not the correct forum to seek the remedy.

31 The Tribunal is satisfied that the rights under ss 106(1) and 106(5) accrue with an owner when the breaches occur at the point they first become aware of the losses. However the Tribunal is not satisfied that these rights are abrogated without express language. The lot owners retain these rights, however the Tribunal does not have jurisdiction to determine the claim. The language "for the time being" is an express term which parliament have used to abrogate the right of parties to apply to the Tribunal to determine the matter.

1. We see no error by the Tribunal on this issue, and we find the Tribunal's reasons for concluding that that as the appellant was not a lot owner at the time its application was ultimately filed, and that the Tribunal had no jurisdiction to hear and determine the applicant, to be correct.
2. We consider that the Tribunal's reasons for decision to be entirely orthodox, and see no substance in the appellant's submissions that:

(1) there are no words of limitation in the definition of owner or in s 106 and the words "for the time being", suggest the contrary;

(2) the Tribunal's interpretation of s 226 ignored established principles of statutory interpretation including that legislation is presumed not to alienate vested proprietary rights without adequate compensation, not to interfere with vested propriety rights, not to interfere with vested statutory rights and not to alter common law doctrines or invade common law rights.

1. While we accept the appellant's submission that the use of the word "must" imposes a strict liability on the respondent, the relevance of that to the substantive jurisdictional argument is not explained by the appellant, nor is the relevance of there being no monetary "cap" on the Tribunal's power to award compensation under s 106.
2. The first ground of appeal raises a question of law, but we see no error on this ground of appeal.
3. This ground of appeal is dismissed.

Whether the Registrar's decision to reject the lodgement of the appellant's claim on 9 November 2023 was void at law for jurisdictional error

1. The appellant's second ground of appeal was that the Registrar's decision to reject the lodgement of the appellant's claim on 9 November 2023 was void at law for jurisdictional error.

1. The appellant claims that the Registrar's decision was void by reason of:

(1) her failure to correctly construe and apply s 227 of the SSMA in the appellant's claim and not s 227(1)(b), being the provision relied upon by the appellant, and in so doing failed to address the case as put and to exercise the statutory power accordingly;

(2) the inflexible application of a "mere policy "of the Tribunal to require a report from Fair Trading before determining that the respondent had refused to participate in mediation under s 227(1)(b).

1. During the appeal hearing, we drew the parties' attention to the recent decision of the Appeal Panel in Grabovsky v Department of Communities and Justice [2025] NSWCATAP 192. In that decision, the Appeal Panel (at [51]ff), considered whether or not decisions of the Registrar were internally appealable decisions for the purposes of internal appeals to the Appeal Panel. We pointed out that, relevantly, it appeared only those decisions of the Registrar set out in r 41 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) were internally reviewable decisions for the purposes of s 32 of the NCAT Act.
2. In case that decision took the parties by surprise, particularly the appellant, we offered the parties the opportunity to provide a post-hearing note if they wished. Mr Anforth told us that was unnecessary as he could address the point straight away. He submitted that there was a distinction between merits review carried out under a statute that confers power, and judicial review which is concerned with the validity of an administrative decision and whether the decision has efficacy or force at all. Mr Anforth said he had addressed this issue in his written submissions, and relied on the decision of the High Court of Australia in Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11.
3. Mr Anforth submitted that as the Registrar's decision was tarred with jurisdictional error, therefore it did not exist at all and was a nullity.
4. In its written submissions, the appellant submitted that there were at least three issues concerning the Appeal Panel's power to review a decision of the Registrar.
5. The first issue was:

(1) whether the Tribunal had the power to declare that the Registrar's refusal to process the application of 9 November 2023 was ultra vires;

(2) whether the Tribunal below had the power to declare that the claim of 9 November 2023 had been validly lodged and had effect at law;

(3) if no, then what is the "operational status" of an unlawful refusal by the Registrar?;

(4) whether the Appeal Panel can review this aspect of the Tribunal below and what remedy the Appeal Panel can provide.

1. The second issue was whether the Appeal Panel could directly review the decision of the Registrar for its lawfulness under s 80 of the NCAT Act as:

(1) an error of law that has occurred within the making of the decision; and

(2) an error of law as part of an "ancillary decision".

1. The third issue was whether the principle in Bhardwaj applies to empower the Tribunal, whether through a direction to the Registrar by the President of the Tribunal or by order of the Appeal Panel, to withdraw the decision (of the Registrar) refusing to accept the appellant's application of 9 November 2023 by reason of jurisdictional error of law, and to replace it with an acceptance of the claim for lodgement of the appellant's application on that date.
2. In its submissions to the Tribunal, repeated on appeal, the appellant submitted that ss 227(1)(b) and (c) applied at the time of the lodgement of its application, but were not considered by the Registrar. The appellant submitted that the Registrar was aware that the respondent had denied the appellant's request for mediation. The appellant further submitted that, in any event, whether its application was effectively lodged on or after the sale of its property, that did not operate to abrogate its accrued existing rights.
3. The appellant submitted that at [22] of the Primary Decision the Tribunal took the view that it did have jurisdiction to review an ancillary matter and did in fact review the Registrar's decision(s). The appellant further submits that the Appeal Panel also has power to determine any collateral matters, being matters of fact or law necessary to determine the dispute (Dyldam Developments Pty Ltd v The Owners - Strata Plan No 85305 [2019] NSWCATAP 229), and that this includes the validity of an application lodged with the Registrar.
4. Finally, the appellant submitted that the contrary proposition is that a decision of the Registrar to reject an applicant is final except for judicial review by the Supreme Court is a construction that would lead "many mischiefs" in the administration of the Tribunal generally.

1. It is not necessary to repeat the respondent's submissions. That is because, for the following reasons, the appellant's submissions are misconceived.

1. The relevant factual background is as follows.
2. In or about October 2020, the appellant suffered water ingress from common property.
3. In June 2021, the appellant commenced proceedings against the respondent. Those proceedings were resolved by consent orders in October 2021.
4. On or about 9 November 2023, the appellant attempted to lodge another application seeking rectification of leaks and compensation under s 106 of the SSMA.
5. On 10 November 2023, the Registrar wrote to the appellant, relevantly stating:

On 09/11/2023 the Registrar received your Application for an Order (substantive application).

Pursuant to Section 227 of the Strata Schemes Management Act 2015 and Section 189 of the Community Land Management Act 2021, the Registrar must not accept an application for an order unless satisfied that mediation has either been attempted or mediation is not necessary or appropriate.

Proof of attempted mediation must be provided on or before 16/11/2023. Note, if you do not provide the information within this time the application will not be accepted by the Registrar and the file will be closed.

...

1. The appellant responded that day, stating that it had attempted to engage with the respondent "prior to issuing the claim, but with no success". The respondent attached an email exchange between it and the respondent's solicitor, enquiring whether that correspondence was evidence of attempted mediation.
2. On 13 November 2023, the Registrar responded, indicating that proof of attempted mediation needed to come from either a Fair Trading or Community Justice Centre.
3. On 29 November 2023, the appellant applied to the Tribunal to dispense with mediation.
4. On 30 November 2023, the Registrar issued the following order:

The Registrar must not accept an Application for an Order unless satisfied that mediation has either been attempted or that mediation is unnecessary or inappropriate. No such information has been received. Therefore, your application has not been accepted and the file has been closed.

1. On 21 December 2023, the appellant sold the subject lot.
2. On 28 February 2024, NSW Fair Trading wrote to the appellant confirming that the application for mediation was closed as the appellant was no longer an owner in the strata scheme.
3. On 3 May 2024, the appellant filed the application that was subject of the proceedings below.
4. The appellant submitted that the issue was whether the Appeal Panel could directly review the decisions of the Registrar for its lawfulness as part of the Appeal Panel's power under s 80 of the NCAT Act because the Registrar's decision contained:

(1) an error of law that has occurred within the making of the decision; and

(2) an error of law as part of an "ancillary decision".

1. We agree that the issue is whether we can review the Registrar's decision.
2. In our view, we have no power to do so. Our power in this internal appeal is limited to hearing internally appealable decisions.
3. Section 80 of the NCAT Act relevantly provides:

80 Making of internal appeals

(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made.

Note.

Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1).

(2) Any internal appeal may be made -

(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

...

1. Section 32 of the NCAT Act in turn relevantly provides:

32 Internal appeal jurisdiction of Tribunal

(1) The Tribunal has internal appeal jurisdiction over -

...

(b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section.

...

Note.

(4) An internally appealable decision is a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction.

(5) An internal appeal is an appeal to the Tribunal against an internally appealable decision.

(6) Subject to the procedural rules, if a decision of a registrar is an internally appealable decision, the provisions of this Act relating to the making and determination of an internal appeal are taken to apply as if -

(a) any reference to the Tribunal at first instance (however expressed) included a reference to a registrar, and

(b) any requirement concerning the granting of leave to appeal against particular kinds of decisions of the Tribunal or on particular grounds extended to decisions of the same kind made by a registrar or grounds of the same kind.

(emphasis added)

1. Rule 41 of the Civil and Administrative Tribunal Rules 2014 (NSW) provides:

41 Registrars may make certain interlocutory decisions of Tribunal

(1) A registrar may, at the direction of the President or a Division Head, make any of the following interlocutory decisions of the Tribunal on behalf of the Tribunal -

(a) a decision under section 41 of the Act concerning the extension of the period of time for the doing of a thing under legislation in connection with proceedings,

(b) a decision under section 45 of the Act concerning the granting or revocation of leave for a person to represent a party to proceedings,

(c) a decision under section 45(4)(a) or (b) of the Act concerning the appointment of a person to act as guardian ad litem for a party, or represent a party, in proceedings,

(d) a decision under section 45(4)(c) of the Act concerning the making of an order for a party to be separately represented in proceedings,

(e) a decision under section 55(1)(a) or (d) of the Act concerning the dismissal of proceedings,

(f) a decision under section 64(1)(d) of the Act concerning the making of an order prohibiting or restricting the disclosure of evidence or documents in proceedings,

(g) a decision under clause 10 of Schedule 6 (Guardianship Division) to the Act concerning the granting of consent for the withdrawal of an application in proceedings,

(h) a decision concerning the setting aside of a summons or excusing compliance with a summons in connection with proceedings,

(i) a decision concerning the granting of access to documents or things produced in compliance with a summons in proceedings.

...

(4) A decision of the Tribunal made by a registrar under this rule is declared to be internally appellable for the purposes of section 32 of the Act if the decision would have been an internally appellable decision for the purposes of the Act had it been made by the Tribunal rather than the registrar.

(emphasis added)

1. In other words, because the decision of the Registrar made on 30 November 2023 (Primary Decision, at [37]) was not referred to in r 41 of the NCAT rules, it is not an internally appealable decision as defined by s 32 of the NCAT Act. It follows therefore, that no internal appeal is available to the appellant on this ground of appeal.
2. Thus, this ground of appeal is misconceived and is accordingly dismissed.

Whether the Tribunal otherwise fell into error of law

1. The appellant's third ground of appeal was whether the Tribunal below fell into error of law:

(1) in finding that the Registrar's decision was a lawfully valid one;

(2) in finding that in coming to her findings of fact and law on the evidence before her, that the respondent had not refused to participate in the mediation within the meaning of s 227(1)(b) of the SSMA; and

(3) whether the Tribunal failed to take into account relevant evidence in coming to its findings and arrived at an unreasonable decision.

1. This ground of appeal simply reagitates the matters set out in the second ground of appeal.
2. These submissions are misconceived as the Registrar's decision is not reviewable by the Appeal Panel.
3. This ground of appeal is also dismissed.

1. The appellant has been unsuccessful.
2. The respondent has already indicated that it seeks its costs.
3. We have included in our orders a timetable for the filing of submissions on costs.
4. We propose to deal with costs on the papers and without a hearing: Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 at [85]. Any party opposing that approach must address that issue in their submissions.
5. Submissions are to be limited to five pages.

(1) The appeal is dismissed.

(2) The respondent is to file and serve any submissions (and if necessary evidence) as to costs on or before 12 November 2025.

(3) The appellant may respond on or before 26 November 2025.

(4) The respondent may reply on or before 3 December 2025.

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] Namely that the Registrar was not satisfied that mediation had been attempted or \that it was unnecessary of inappropriate, and because the mediation "was not a structured process facilitate by an independent mediator".

[4] These documents included but were not limited to a document titled "Chairman's report SP 92745 admitting liability to repair leaks"; mediation invitation from NSW Fair Trading; Rejection of mediation by NBSW Fair Trading; Applicant's particular of claim case; Application to dismiss case 2024/.001164282 by Respondent; Applicant's submissions in reply; a chronology and a statement of Mr Gary Woodbridge dated 28 April 2024.

[5] In the Primary Decision this word is recorded as "accused", clearly a typographical error.