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[2026] NSWCATAP 133
General information, not legal advice.
NCAT Appeal Panel
2026-04-24
G Sarginson, Deputy President
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Medium Neutral Citation: Horan v The Owners-Strata Plan No 68307 (No 3) [2026] NSWCATAP 133
Hearing dates: On the papers
Date of orders: 24 April 2026
Decision date: 24 April 2026
Jurisdiction: Appeal Panel
Before: G Sarginson, Deputy President
Decision: (1) A hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
(2) The application for miscellaneous matters lodged on 11 September 2025 is dismissed.
(3) Any costs application from the dismissal of the application for miscellaneous matters is to be considered and determined as follows:
(a) The costs applicant is to lodge with the Appeal Panel Registry and serve on the costs respondent written costs submissions (not exceeding 5 pages) and documents by 14 days from the date of this decision.
(b) The costs respondent is to lodge with the Appeal Panel Registry and serve on the costs applicant written costs submissions (not exceeding 5 pages) and documents by 28 days from the date of this decision.
(c) The costs applicant is to lodge with the Appeal Panel Registry and serve on the costs respondent written submissions in reply (not exceeding 3 pages) by 35 days from the date of this decision.
(d) Costs submissions and documents are to be lodged and served by person or by post, with an additional copy lodged and served by email. A hard copy of the costs submissions and documents must be lodged with the Appeal Panel Registry.
(e) If a party seeks an extension of time to comply with directions, an application should be made in writing to the Appeal Panel Registry with a copy sent to the other party no later than the day prior to the date for submission of documents.
(f) Submissions and documents not provided in accordance with these directions may not be relied on at the hearing without leave of the Appeal Panel.
(g) The parties’ costs submissions are to include whether a hearing on the issue of costs should be dispensed with, and the costs application determined on the papers.
Catchwords: APPEALS – internal appeals – jurisdiction- application to appeal or vary costs orders of the Tribunal at first instance – no Appeal Panel jurisdiction to make the orders sought
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Regulation 2022 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Strata Schemes Management Act 2015 (NSW)
Cases Cited: Horan v The Owners – Strata Plan No. 68307 [2024] NSWCATAP 118
Horan v The Owners – Strata Plan No. 68307 (No 2) [2024] NSWCATAP 173
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22
Jones v Mega Awesome Kapow Constructions Pty Ltd [2024] NSWCATAP 86
Jones v Mega Awesome Kapow Constructions Pty Ltd (No. 2) [2024] NSWCATAP 184
LMA Contractors Limited v Changizi [2017] NSWCATAP 145
White House Developments Pty Ltd v The Owners - Strata Plan No 70276 (No 2) [2025] NSWCATAP 92
White House Developments Pty Ltd v The Owners - Strata Plan No 70276 [2025] NSWCATAP 68
Texts Cited: None cited
Category: Principal judgment
Parties: Michael David Horan (Appellant)
The Owners-Strata Plan No 68307 (Respondent)
Representation: Counsel:
N Y H Li (Respondent)
Solicitors:
Bannermans Lawyers (Appellant)
Kerin Benson Lawyers (Respondent)
File Number(s): 2023/00458569
Publication restriction: Nil
This is an application for miscellaneous matters that comes before the Appeal Panel in unusual circumstances.
Any reference in this decision to “the lot owner” is a reference to Mr Horan, and any reference to “the owners corporation” is a reference to The Owners-Strata Plan No 68307.
The owners corporation (who was the respondent in the proceedings below and in the appeal proceedings) seeks orders of the Appeal Panel to allow an “appeal” from a “constructive failure to exercise jurisdiction” of the Tribunal not to determine an application to vary a costs order that were made by the Tribunal below and was the subject of an unresolved application to the Tribunal to vary or change the order.
The application is pressed, notwithstanding no notice of appeal was lodged in respect of the costs decision.
It is appropriate to determine the application for miscellaneous matters dispensing with a hearing under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The parties have been given an opportunity to be heard on this issue. No party seeks a hearing. In any event, the parties submissions and any documentary evidence relied upon can be fairly considered without a hearing.
It is necessary to set out the procedural and factual background of the matter.
On 21 November 2023, Gracie SM of the Consumer and Commercial Division published a decision where the lot owner was awarded damages of $9,325.19 under ss 106(5) and 232 of the Strata Schemes Management Act 2015 (NSW) (SSM Act) by reason of the lot being uninhabitable for a period of time due to water ingress.
Gracie SM found that the lot owner had failed to prove loss of rental income beyond the amount awarded, and also failed to prove a claim for damages in respect of the cost of alternative accommodation whilst common property and lot property were being repaired.
Gracie SM made a costs order against the owners corporation, with orders allowing the parties to make an application to the Tribunal to vary the costs order or seek a different costs order. Any party seeking a different costs order was to lodge and serve costs submissions and documents within 14 days of publication of the orders. If such an application was made, the other party was to lodge and serve costs submissions and documents 7 days thereafter. The submissions of the parties were to include addressing whether a hearing could be dispensed with under s 50(2) of the NCAT Act, and any application to vary the costs decision be made “on the papers”.
In the reasons for decision, Gracie SM described the costs order as “provisional,” which is interpreted to mean that it was final unless there was an application to vary or change in accordance with the procedural directions. The basis of the costs order was that the amount claimed or in dispute in the proceedings exceeded $30,000 (r 38(2)(b) of the Civil and Administrative Tribunal Rules 201**4 (NSW) (NCAT Rules)) so the provisions under ss 60(1)-(3) of the NCAT Act did not apply. Gracie SM found that the lot owner was the successful party, and stated the owners corporation should “prima facie” pay the lot owner’s costs of the proceedings.
There was also an order made that the lot owner be “quarantined” from contributing to damages or costs of the owners corporation by way of levies, which was also made subject to any application to vary or make a different order.
On 5 December 2023, the owners corporation lodged an application to vary or otherwise change the costs order. The application does not appear to have been made by way of a miscellaneous matters application, but rather the lodging of submissions and documents. However, it was consistent with the mechanism set out in the orders of 21 November 2023.
That application was supported by written submissions of the owners corporation’s Counsel, Mr Li, and other documents, including correspondence between the parties involving Calderbank offers. The owners corporation sought an order that the lot owner pay the owners corporation’s costs on the ordinary basis until 20 February 2023 and on an indemnity basis thereafter. The substance of the application was that the lot owner had unreasonably rejected Calderbank offers that were more favourable to the lot owner than the orders of Gracie SM.
The lot owner appealed the decision dated 21 November 2023 to the Appeal Panel pursuant to s 80 of the NCAT Act on 18 December 2023. The grounds of appeal did not deal with the costs order. Rather, they involved the assessment of damages.
The owners corporation did not lodge its own appeal from the decision of Gracie SM dated 21 November 2023.
On 24 June 2024, the Appeal Panel (Harrowell DP and Sarginson SM) published its decision in the lot owner’s appeal (Horan v The Owners – Strata Plan No. 68307 [2024] NSWCATAP 118 (Horan (No 1)). The Appeal Panel allowed the appeal in part. It determined it appropriate to vary the orders of the Tribunal at first instance under s 81(1)(b) of the NCAT Act, rather than remit the proceedings back to the Tribunal for reconsideration.
The Appeal Panel ordered the owners corporation pay damages pursuant to ss 106(5) and 232 of the SSM Act to the lot owner in the amount of $46,616.26. That amount comprised of $45,060 for the loss of opportunity to rent the lot in the period between July to December 2020; and $429.26 for electricity charges incurred by the lot owner between 1 January 2021 and 11 November 2021.
The orders of the Appeal Panel dated 24 June 2024 contained procedural directions regarding determination of the issue of costs. The procedural directions relevantly state:
“…
(3) In respect of costs, the following directions apply:
(a) The applicant for costs (costs applicant) is to file and serve any application for costs (costs application), including any application concerning costs of the proceedings at first instance, within 14 days from the date of these orders. Such application is to include any evidence and a short submission (not more than 5 pages).
….
The Appeal Panel did not vary, or set aside, the costs order made by Gracie SM.
The parties costs submissions pursuant to the orders of 24 June 2024 focussed upon the appeal proceedings, rather than any outstanding costs application from the first instance proceedings.
The Appeal Panel determined costs of the appeal on 6 September 2024 (Horan v The Owners – Strata Plan No. 68307 (No 2) [2024] NSWCATAP 173 (Horan (No 2)).
The owners corporation was ordered to pay the lot owner’s legal costs of the appeal, as agreed or assessed. The Appeal Panel’s reasons include the following:
“ [15] The respondent says the usual position should be displaced because of various Calderbank offers made by the parties in the proceedings at first instance. The respondent says that the appellant should pay their costs of the appeal or, alternatively, each party should pay their own costs of the appeal.
[16] We disagree for the following reasons:
(1) As noted by both parties, we have not been asked to determine the issue of costs in the proceedings at first instance. Rather, the issue of costs of first instance remains to be resolved in the Consumer and Commercial Division where the Tribunal is apparently reserved.
(2) Insofar as offers of compromise have been made in those proceedings, their relevance and effect in any determination of costs remains to be considered by the Tribunal in the first instance proceedings. Of course, taking account of the amount of damages we have determined the appellant was properly entitled to receive.
(3) As to the appeal proceedings, we have not been referred to any offers that have been made in connection with the appeal. All the offers identified in paragraph 3-5 of the respondent’s costs submissions were made prior to determination of the proceedings at first instance. There was no offer made in the appeal proceedings which could be said to have been unreasonably refused by the appellant.”
On 5 May 2025, the Solicitor for the lot owner wrote to the Appeal Panel Registry (with a copy sent to the Solicitor for the owners corporation) stating that the appeal costs had been agreed, but that the “decision on costs for the hearing at first instance…are still reserved”. The Solicitor for the lot owner enquired when there would be a decision on the first instance costs of the proceedings.
On 8 May 2025, the Solicitor for the owners corporation wrote to the Appeal Panel Registry (with a copy to the Solicitor for the lot owner) asserting that the owners corporation had made an application on 5 December 2023. That email also refers to the lot owner having lodged and served “costs submissions in reply” on 12 December 2023 but neither party has provided a copy of those submissions.
On 13 May 2025, the Solicitor for the lot owner wrote to the Solicitor for the owners corporation (with a copy to the Appeal Registry) stating that, by reason of order (3) of the Appeal Panel dated 24 June 2024, any costs application to vary or costs submissions regarding the proceedings at first instance should have been included with the appeal costs submissions.
On 29 May 2025, the Solicitor for the owners corporation wrote to the Solicitor for the lot owner (with a copy to the Appeal Registry) asserting that an application had been made to the Tribunal to vary the costs orders at first instance, which had not been dealt with and the Tribunal Member was “not functus officio” by reason of the appeal. The email asserted that if the owners corporation was wrong in that interpretation, it sought an extension of time to provide costs submissions to the Appeal Panel from the decision at first instance pursuant to order (3) of the Appeal Panel dated 24 June 2024.
On 25 August 2025, the Solicitor for the owners corporation wrote to the Appeal Panel Registry (with a copy to the lot owner’s Solicitor) following up the Appeal Panel Registry for a “reply” from the Registry. It was not entirely clear, however, what precisely the Appeal Panel Registry was being asked to reply to.
On 3 September 2025, I made written procedural directions, that pointed out that Gracie SM has not been, and is not anticipated to be, sitting in the Tribunal in the recent past or for the foreseeable future, and that Harrowell DP is no longer a Member of the Tribunal. The procedural directions were that the lot owner lodge and serve a miscellaneous matters application setting out the orders sought, and a timetable for the parties to lodge and serve submissions and documents. The procedural directions identify the some of the issues for consideration, including whether the Appeal Panel has jurisdiction to determine the application to vary (or otherwise change) the Tribunal’s first instance costs order, and the application to vary which was made by the owners corporation to the Tribunal.
On 11 September 2025, the owners corporation lodged a miscellaneous matters application. The orders sought are framed in the manner that there is an appeal from the costs order of Gracie SM, rather than that the Appeal Panel has the power to deal with the application to vary the costs order made to the Tribunal in December 2023 as part of its determination of the appeal under s 81(1)(b) of the NCAT Act.
The orders sought by the owners corporation are as follows:
“1. Pursuant to s 80(2), grant leave for the Owners to appeal from the constructive failure by the Tribunal below to exercise jurisdiction in connection with the Owners application for costs orders made on 28 November 2023 pursuant to order 6 of the Tribunal below made on 21 November 2023.
2. Allow the appeal.
3. Pursuant to s 81(1) declare that the Tribunal constructively failed to exercise jurisdiction in connection with the Owners application for costs orders made on 28 November 2023 pursuant to order 6 of the Tribunal below made on 21 November 2023.
4. Pursuant to s 81(1)(e), remit the Owners application for costs orders made on 28 November 2023 to a differently constituted Tribunal for redetermination in accordance with law.
5. In the alternative to prayer 4, pursuant to s 80(3)(a) or s 81(2), order that Mr Horan pay the Owners’ costs on an ordinary basis up to 20 February 2023 and Mr Horan pay the Owners’ costs on an indemnity basis thereafter.
6. In the alternative to prayers 4 and 5, each party bear their own costs up to 20 February 2023 and Mr Horan pay the Owners costs on and from 20 February 2023.
7. In the alternative to prayer 4 to 6, each party bear their own costs.
8. Mr Horan pay the Owners’ costs of this application.”
Both parties have provided written submissions pursuant to the procedural directions on 3 September 2025. The owners corporation have also provided a two volume bundle of documents lodged on 3 October 2025. For reasons that do not require elucidation, there has been a delay in this material being forwarded to me for consideration.
The owners corporation’s submissions in chief are dated 19 September 2025; and the submissions in reply are dated 3 October 2025. There was also a subsequent letter clarifying typographical errors in the submissions.
The lot owner’s submissions are dated 26 September 2025.
The owners corporation’s submissions are summarised as follows:
The failure of the Tribunal to determine the owners corporation’s application to vary or make a different order in respect of the costs of the Tribunal proceedings is a “failure to decide” or a constructive failure to make a decision, such that there has been a “abdication or abandonment of the statutory function to proceed in the matter.”
The owners corporation could make an application for a prerogative writ to the Supreme Court, but seeks to exhaust all internal appeal mechanisms.
The failure to decide by the Tribunal is a jurisdictional error capable of being appealed from by way of an internal appeal.
The error is an error on a question of law, giving an appeal as of right under s 80 of the NCAT Act. In the alternative, leave to appeal should be granted.
There is no jurisdiction of the Appeal Panel to determine the application to vary the costs decision at first instance other than by way of an internal appeal by reason of the Tribunal’s failure to exercise jurisdiction. However, if the owners corporation is wrong on that issue, the Appeal Panel should extend the time to make the application under s 41 of the NCAT Act.
The owners corporation does not oppose the application being determined “on the papers” and without a hearing.
The lot owner’s submissions are summarised as follows:
There is no competent internal appeal under s 80 of the NCAT Act from any decision of the Tribunal at first instance as no notice of appeal has been lodged in accordance with r 25 of the NCAT Rules.
The owners corporation had the opportunity to make submissions to the Appeal Panel on the issue of costs as part of its appeal costs submissions, and failed to do so.
No orders have been made varying or otherwise changing the orders of the Tribunal at first instance that the owners corporation pay the lot owners costs on the ordinary basis as agreed or assessed.
The failure of the Tribunal to determine the owners corporation’s application to vary the costs decision at first instance is a “decision” of the Tribunal under s 5(1)(g) and (2)(d) of the NCAT Act. If the owners corporation sought to appeal that decision, it should have lodged a notice of appeal to the Appeal Panel by way of an internal appeal. It has failed to do so, and if it does so, it requires leave to appeal and leave to extend time to lodge the appeal. Both are opposed.
As the owners corporation made an application for costs in the first instance proceedings that are unresolved, the Appeal Panel has “authority…to consider the issue of costs in the first instance proceedings.
An extension of time to make the costs application should be refused under the principles in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22].
The reply submissions are summarised as follows:
The directions made by the Appeal Panel in respect of determining the costs of the appeal should not be construed as a direction that the parties must make costs submissions pertaining to the proceedings at first instance, because of the “limits” of the Appeal Panel’s jurisdiction. Accordingly, the owners corporation failing to make costs submissions of the proceedings at first instance in addition to the application it had made to the Tribunal to vary its costs order on 5 December 2023 (with supportive submissions and documentary evidence) is irrelevant.
In light of the lot owners submissions, if it necessary to do so, the owners corporation now, additionally, seeks leave to amend its miscellaneous matters application to vary the procedural directions made by the Appeal Panel on 24 June 2024 so that the Appeal Panel can determine the issue of costs under s 81 of the NCAT Act.
The Appeal Panel should grant leave for the owners corporation to appeal the decision of the Tribunal not to determine the application of the owners corporation to vary the costs order made by the Tribunal that the owners corporation pay the lot owner’s costs of the Tribunal proceedings.
This issue has been considered by the Appeal Panel in White House Developments Pty Ltd v The Owners - Strata Plan No 70276 (No 2) [2025] NSWCATAP 92 (White House (No 2)). That decision was published on 29 April 2025, more than 4 months prior to the lodging of the owners corporation’s miscellaneous matters application. Neither legally represented party referred to that authority in their submissions.
In White House (No 2) there had been a costs decision at first instance that had not been the subject of an internal appeal to the Appeal Panel.
The internal appeal to the Appeal Panel involved a decision of the Tribunal dated 26 August 2024. The internal appeal was determined on 2 April 2025 (White House Developments Pty Ltd v The Owners - Strata Plan No 70276 [2025] NSWCATAP 68 (White House (No 1)).
On 11 November 2024, the Tribunal made a separate ancillary costs decision. That decision was never the subject of an internal appeal to the Appeal Panel.
In White House (No 1), the Appeal Panel allowed the appeal in part, and varied the Tribunal decision subject to the appeal under s 81(1)(b) of the NCAT Act. The Appeal Panel ordered the respondent to pay one quarter of the appellant’s costs of the appeal on the ordinary basis, but made procedural directions that gave the parties the opportunity to seek a variation of the costs order.
The respondent (owners corporation) then made an application to vary the costs order made in the appeal. The appellant (White House) made submissions in response, but also sought to vary the costs decision at first instance dated 11 November 2024. The respondent opposed the application to vary the costs decision at first instance.
It is unnecessary to set out the Appeal Panel’s decision on the application to vary the costs orders in the appeal proceedings. What is pertinent is the decision in respect of the application to vary the costs decision on 11 November 2024, which had never been the subject of an internal appeal.
In White House (No 2), the Appeal Panel dealt with the application to vary the costs decision at first instance as an application to re-open the appeal. In this matter, no formal application has been made by the owners corporation to re-open the appeal hearing under s 38(1) of the NCAT Act. However, that distinction does not alter the applicable legal principles.
The Appeal Panel determined it appropriate to depart from the decision in Jones v Mega Awesome Kapow Constructions Pty Ltd [2024] NSWCATAP 86 and the ancillary appeal costs decision Jones v Mega Awesome Kapow Constructions Pty Ltd (No. 2) [2024] NSWCATAP 184 (Jones (No 2)) because the Appeal Panel was satisfied the decision in Jones (No 2) clearly involved the application of an incorrect legal principle. The Appeal Panel stated at [42]-[43] and [48]-[49]:
“[42] We respectfully disagree with the finding in Jones (No. 2) at [17] that the Appeal Panel has power to consider a costs decision made in the proceedings at first instance after the commencement of the appeal without the notice of appeal being amended for the following reasons:
(1) the powers conferred on the Appeal Panel in s 81 of the NCAT Act may be exercised ”(i)n determining an internal appeal”. In the light of the definitions of ”internal appeal,” ”internal appeal jurisdiction” and ”internally appealable decision” in ss 4(1) and 32(1), (4) and (5) when read with the definition of ”decision” in ss 4(1) and 5, these powers are limited to the particular decision which is the subject of the appeal;
(2) section 81(1)(b), (c) and (d) by their terms only permit the varying, quashing, setting aside, or quashing or setting aside and substituting another decision for ”the decision under appeal”;
(3) the costs decision is an ”ancillary decision” within para (b) of the definition of this expression in s (4) when read with the meaning of ”decision” in s 5(1)(a) of the NCAT Act. As such, a separate internal appeal against it may be made pursuant to s 80(1) and (2)(b). Unless an internal appeal is made against it, the powers in s 81 cannot be exercised in relation to the decision.
[43] We do not accept that the provisions of the NCAT Act relied on by WHD support the existence of the putative power for the following reasons:
(1) section 3(d) is one of the objects of the NCAT Act, and does not confer any power on the Tribunal;
(2) while it is necessary pursuant to s 36(2)(b) to seek to give effect to the guiding principle in s 36(1) in interpreting s 81, it does not support the existence of a power to make orders in respect of a decision which is not under appeal;
(3) the stipulation in s 38(4) as to the procedure of the Tribunal does not address the existence of the powers of the Tribunal;
(4) while we accept that s 60(4) when read with para (b) of the definition of ”costs” in s 60(5) enables the Tribunal to determine the costs in proceedings giving rise to an appeal, this provision does not confer any power on the Appeal Panel to set aside a costs decision which is not the subject of the appeal.
…
[48] In view of our decision that the application of WHD to reopen the appeal should be dismissed, this question does not arise for consideration.
[49] If we had decided to grant the application of WHD to reopen the appeal, we would have set aside the first instance costs order and remitted the issue of the costs of the proceedings at first instance to the Tribunal as originally constituted for reconsideration in the light of the appeal decision pursuant to s 81(1)(c) and (e) of the NCAT Act. The reconsideration of the costs of the proceedings at first instance and the continuing application of the findings in the 11 November 2024 decision at [29]-[37] would be best undertaken by the Tribunal which has a detailed understanding of the proceedings.”
5 Meaning of “decision”
(1) In this Act, decision includes any of the following—
(a) making, suspending, revoking or refusing to make an order or determination,
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,
(d) imposing a condition or restriction,
(e) making a declaration, demand or requirement,
(f) retaining, or refusing to deliver up, an article,
(g) doing or refusing to do any other act or thing.
(2) For the purposes of this Act—
(a) a decision is made under enabling legislation or this Act if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation or this Act, and
(b) a decision that purports to be made under enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act even if the decision was beyond the power of the decision-maker to make, and
(c) a refusal of a decision-maker to make a decision under enabling legislation or this Act because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act to refuse to make the decision requested, and
(d) a failure by a decision-maker to make a decision within the period specified by enabling legislation or this Act for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision.
32 Internal appeal jurisdiction of Tribunal
(1) The Tribunal has internal appeal jurisdiction over—
(a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and
(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.
(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its internal appeal jurisdiction—
(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,
(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.
(3) However, the internal appeal jurisdiction of the Tribunal does not extend to—
(a) any decision of an Appeal Panel, or
(b) any decision of the Tribunal in an external appeal, or
(c) any decision of the Tribunal in proceedings for the exercise of its enforcement jurisdiction, or
(d) any decision of the Tribunal in proceedings for the imposition of a civil penalty in exercise of its general jurisdiction.
Note.
The decisions above may be appealable to the Supreme Court and, in some cases in relation to civil penalty decisions made by the Tribunal (whether under this Act or enabling legislation), the District Court. See section 73 and Part 6.
(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.
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.
(3) The Appeal Panel may—
(a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and
(b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
25 External and internal appeals
(1) An external or internal appeal (including, where required, an application for leave to appeal) may be made by lodging a notice of appeal.
(2) The notice of appeal must be—
(a) in or to the effect of the approved form, and
(b) duly completed, and
(c) lodged at the Registry, and
(d) accompanied by the applicable fee (if any) for the appeal.
(3) A notice of appeal need not specify the Division of the Tribunal (if any) to which the function of determining the appeal is allocated by the Act. However, if the appropriate Division is not specified or an incorrect Division is specified, a registrar may complete or alter the notice form accordingly.
(4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged—
(a) in the case where the enabling legislation specifies the period within which the appeal is to be made—within the period specified, or
(b) in the case of an internal appeal against a decision made in residential proceedings—within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later), or
(c) in any other case—within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later).
(4A) For the purposes of subrule (4), the day on which reasons are given is the day on which reasons are first given, whether orally or in writing.
(5) An appellant who lodges a notice of appeal must serve on each respondent a sealed copy of the notice as soon as practicable after lodging the notice.
Under r 5 of the NCAT Rules, the President or a Division Head may dispense with compliance with the Rules, either before or after the occasion for compliance arises. However, there needs to be an appropriate and satisfactory reason for exercising the discretion to dispense with compliance.
As discussed previously, there was a costs decision by SM Gracie as part of the first instance Tribunal proceedings. That order was never appealed against. What has occurred is the owners corporation made an application to vary (or otherwise change) the order in accordance with the procedural directions made by Gracie SM, but that application has never been dealt with.
It appears a critical reason that application was never dealt with is that, once the lot owner lodged an appeal from the orders involving the assessment of damages under ss 106(5) and 232 of the SSM Act, the parties focus shifted to the appeal. It was not until after the decision was made regarding appeal costs in Horan (No 2) that attention was turned back to the application that had been made on 5 December 2023 to vary (or otherwise change) the costs orders made by Gracie SM in the first instance proceedings.
The owners corporation submits that Gracie SM made a “decision” not to vary the costs order of 21 November 2023 by way of not dealing with the application to vary (or otherwise change) the costs order made by the owners corporation on 5 December 2023 because it “refused” to do an act or thing (s 5(1)(d) of the NCAT Act; or refused to make an order or determination (s 5(1)(a) of the NCAT Act); or failed to make a decision “within the period specified by enabling legislation or this Act for making the decision” constituting a refusal (s 5(2)(d) of the NCAT Act).
I do not accept that submission. In the circumstances of the matter, assessed objectively, Gracie SM did not make any decision to refuse to do an act or thing (being consideration of the owners corporation’s application to vary the costs order), or refused to make an order or determination.
Rather, the owners corporation’s application to vary (or change) the costs decision at first instance to the Tribunal was simply overlooked or not acted upon, partially due to parties not following up the issue until the appeal had concluded. That is insufficient to be a refusal to do an act or thing under s 5(1)(g) of the NCAT Act. It is also insufficient to be a refusal to make an order or determination under s 5(1)(a) of the NCAT Act. In the circumstances of this matter, delay, or dilatory conduct, or mistakenly overlooking an application, is not a constructive refusal.
There was no period specified under the Strata Schemes Management Act 2015 (NSW) (SSM Act); or the NCAT Act; or the Civil and Administrative Tribunal Regulation 2022 (NSW); or the NCAT Rules identified in the submissions that provided a temporal limit to the Tribunal considering the owners corporation’s application to vary (or otherwise change) its costs order lodged by the owners corporation on 5 December 2023. I am not satisfied that there was a “refusal” constituting a “decision” under s 5(2)(d) of the NCAT Act.
There is no “decision” of the Tribunal under s 5 of the NCAT Act in respect of the application by the owners corporation made on 5 December 2023 to vary (or otherwise change) the cost order made by Gracie SM on 21 November 2023 that can form the basis of an internal appeal to the Appeal Panel under s 32(1) of the NCAT Act.
Currently, the only costs decision of the Tribunal at first instance is the decision dated 21 November 2023 that the owners corporation pay the costs of the lot owner as agreed or assessed, and there is an undetermined application by the owners corporation made to the Tribunal in accordance with the orders of 21 November 2023 to vary (or otherwise change) that decision.
As the lot owner points out, there is a further difficulty in the argument of the owners corporation that it is making an internal appeal in respect of the costs order made by Gracie SM on 21 November 2023, because it has not lodged a Notice of Appeal compliant with r 25 of the NCAT Rules. If an internal appeal is filed under s 32 of the NCAT Act from a Tribunal decision, then r 25 of the NCAT Rules sets down the procedural requirements for lodging the appeal. Lodging an application for miscellaneous matters is not, without cogent reasons, sufficient to waive the requirement. No cogent reasons were advanced.
However, the jurisdictional deficiency is distinct from non-compliance with r 25 of the NCAT Rules. The owners corporation has not lodged an appeal from the costs decision made by Gracie SM on 21 November 2023. Rather, it attempts to appeal (without an appeal being lodged in the proper form) from the failure of the Tribunal to deal with the application to vary (or otherwise change) the costs decision. For reasons expressed previously, this is not a “decision” under s 5 of the NCAT Act that gives rise to an internal appeal under s 32(1) of the NCAT Act.
The Appeal Panel, in Horan (No 1) granted leave to appeal and determined the issue of damages such that it varied the damages orders made by the Tribunal at first instance rather than remitting the issue back to the Tribunal for reconsideration.
The Appeal Panel in Horan No 1 did not set the first instance costs order aside, such that it was to be varied by the Appeal Panel.
In hindsight, the comment in the order 3(a) of Horan (No 1) that appeal costs submissions include “any application concerning costs of the proceedings at first instance” could have been better expressed, or not expressed at all.
However, any ambiguity was rectified by the comments in Horan (No 2) at [16](1) that the costs of the first instance proceedings “remains to be resolved in the Consumer and Commercial Division…” The following comment that costs at first instance “appear to be reserved” does not require exploration. At [16](2), the Appeal Panel made clear that the Calderbank offers in the first instance proceedings were matters to be considered by the Tribunal, not the Appeal Panel.
The gravamen of [16](1)-(2) is that it is a matter for the Tribunal at first instance to determine any outstanding costs dispute of the proceedings at first instance, and all the Appeal Panel was doing in Horan (No 2) was determining the costs of the appeal. That is consistent with the principles expressed in White House (No 2).
The application by the owners corporation in the miscellaneous matters application lodged on 11 September 2025 must be dismissed, as the Appeal Panel has no power to make the orders sought.
Even it were wrong in that conclusion, there is no discretionary basis established to consider the application to vary costs at first instance, when there is an undetermined application by the owners corporation before the Tribunal.
The appropriate course of action is for the Tribunal to consider and determine the application by the owners corporation lodged on 5 December 2023 to vary or change the costs orders of the Tribunal dated 21 November 2023. It is not a matter for determination by the Appeal Panel.
The owners corporation made its application to the Tribunal to vary (or otherwise change) the costs orders of the Tribunal dated 21 November 2023 within the time period specified in the orders. Subject to consideration of any submission to the contrary, it does not appear that the Tribunal needs to consider an extension of time application under s 41 of the NCAT Act.
It is noted that Gracie SM, while still a Member of the Tribunal, is unlikely to be in a position to determine the application to vary (or otherwise change) the cost orders made on 21 November 2023. However, that does not mean another Member of the Tribunal cannot determine the application. The decision is ancillary to the substantive decision, and involves consideration of whether Calderbank offers have been unreasonably refused. That requires evaluation of the offers made; the decision of Gracie SM (other than affected by the appeal decision in Horan (No 1)); and the order for damages varied by the Appeal Panel under s 81(1)(d) of the NCAT Act in Horan No 1.
Whether any order needs to be made under s 52 of the NCAT Act to reconstitute the Tribunal is an issue the parties can deal with in submissions to the Tribunal. It is arguable that no reconstitution order needs to be made, because Gracie SM “determined” the substantive proceedings to conclusion (subject to the s 81 NCAT Act variation imposed by the Appeal Panel) and the application to vary (or otherwise change) the costs order is an ancillary matter that can be considered and determined by any other Member of the Consumer and Commercial Division. However, that is an issue for the Tribunal to consider, not the Appeal Panel.
The appropriate way forward is that:
The owners corporation write to the Registry of the Consumer and Commercial Division (with a copy provided to the other party) attaching a copy of this decision, and requesting the matter be re-listed before a Senior Member or Principal Member of the Tribunal for a procedural directions hearing in respect of the management of the owners corporation’s application to vary (or otherwise change) the costs orders of the Tribunal dated 21 November 2023.
At that directions hearing, the parties are to make submissions on any relevant procedural issue, including (a) whether an order needs to be made to reconstitute the Tribunal under s 52 of the NCAT Act, or no order is required because the substantive proceedings have been “determined” under s 52(1) and the costs application involves a separate ancillary application that does not require the reconstitution of the Tribunal; and (b) any other appropriate procedural orders, such as an amended timetable for the lodging and serving of costs submissions and documents.
(a) The costs applicant is to lodge with the Appeal Panel Registry and serve on the costs respondent written costs submissions (not exceeding 5 pages) and documents by 14 days from the date of this decision. (b) The costs respondent is to lodge with the Appeal Panel Registry and serve on the costs applicant written costs submissions (not exceeding 5 pages) and documents by 28 days from the date of this decision. (c) The costs applicant is to lodge with the Appeal Panel Registry and serve on the costs respondent written submissions in reply (not exceeding 3 pages) by 35 days from the date of this decision. (d) Costs submissions and documents are to be lodged and served by person or by post, with an additional copy lodged and served by email. A hard copy of the costs submissions and documents must be lodged with the Appeal Panel Registry. (e) If a party seeks an extension of time to comply with directions, an application should be made in writing to the Appeal Panel Registry with a copy sent to the other party no later than the day prior to the date for submission of documents. (f) Submissions and documents not provided in accordance with these directions may not be relied on at the hearing without leave of the Appeal Panel. (g) The parties costs submissions are to include whether a hearing on the issue of costs should be dispensed with and the costs application determined on the papers.
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. Registrar
Horan
The Owners-Strata Plan No 68307 (No 3)