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[2026] NSWCA 47
respondent. The summons seeking leave to appeal was dismissed with costs, and the second applicant and second respondent were removed as parties.
The Court refused permission for Hua Nan Trading to appeal. Its February 2022 NCAT application had not been accepted and the file had been closed, so the later April application was treated as a separate proceeding. The Court also considered that whether the April application was late was a factual, or possibly mixed factual and legal, question, while the statutory appeal route was limited to questions of law. The summons was dismissed with costs, and the director and insurer were removed as parties.
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8 cited instruments linked from this judgment.
2,209 words · generated 08/10/2026
Hua Nan Trading Pty Ltd owned a unit in Strata Plan No. 32396. After heavy rain between 7 and 10 February 2020, water entered the unit and damaged stock. The company alleged that a failure by the owners corporation to maintain and repair a common-property downpipe caused the damage. The judgment records that the company appeared to have become aware of the damage around 10 February 2020 ([4]).
On or around 2 February 2022, the company electronically lodged an NCAT application seeking compensation under s 106(5) of the Strata Schemes Management Act 2015 (NSW) ([5]). The next day, the NCAT Registry advised that the application would not be listed until information about mediation was provided. The Registry referred to s 227 of the SSM Act and said it could not accept an application unless satisfied mediation had been attempted or was unnecessary or inappropriate ([6]).
The Registry gave 7 February 2022 as the date by which proof of attempted mediation was to be provided. However, on 4 February it told the company that the application had not been accepted and the file was closed ([6], [8]). The judgment notes that NCAT did not explain why the information supplied was insufficient, leaving uncertainty about whether the online complaint to Fair Trading was treated as a mediation request or whether the Registry required mediation to have proceeded and failed ([12]).
The company subsequently pursued mediation through Fair Trading. A mediation was held on 22 April 2022, but did not result in a final settlement ([17]–[18]). The company lodged a further NCAT application on 28 April 2022, seeking the same amount, $64,726.90. It referred to the earlier application and said NCAT had asked for a new application after mediation ([19]).
NCAT dismissed the April application as out of time. Its decision treated the relevant two-year period as running from February 2020, when the company first became aware of the loss, under s 106(6) of the SSM Act ([21]). There were further NCAT proceedings concerning whether time could be extended and whether the underlying claim had sufficient merit ([22]–[26]). In October 2024, an Appeal Panel concluded that the April application was out of time and declined to extend time ([25]–[26]).
The company appealed to the Supreme Court under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW). Its sole ground concerned the finding that the April application was late. It did not separately challenge the refusal to extend time; its position was that the February application linked the two applications and meant the proceedings had started within the original period ([30]–[32]). Walton J dismissed the appeal, finding the point raised was factual or mixed fact and law, rather than a question of law ([33]).
The Court of Appeal refused leave to appeal from that judgment. Its orders dismissed the summons with costs and removed Jack Mei and the insurer as parties ([40]).
The statutory appeal route was a central constraint. Section 83(1), reproduced in the judgment, allows a party to appeal to the Supreme Court “on a question of law” and only “with the leave of the Supreme Court” ([28]). The Court emphasised that the proposed appeal was therefore not an appeal as of right and was confined to law ([29]).
The Court applied the general leave threshold it stated at [35]: an applicant must establish an issue of principle, a question of public importance, or a reasonably clear injustice arising from an error that is more than merely arguable. It held that Hua Nan Trading had not met that threshold ([37]).
The main factual and procedural obstacle was the status of the February application. The Court said it was never accepted by NCAT and the related file was closed. The April application was separately numbered, which the Court regarded as reflecting that it was a separate proceeding ([37]). That conclusion defeated the company's central argument that the April application should be treated as a continuation of a proceeding validly started on 2 February.
The second obstacle was the character of the finding under challenge. The Court described the Appeal Panel's finding that the April application was late as “a finding of fact or possibly a mixed finding of fact and law” ([38]). Since the Supreme Court proceeding had been confined to a question of law, the Court of Appeal saw no prospect of leave succeeding on that point ([38]). This did not establish a general rule that every limitation issue is factual. The holding was framed around this particular finding and the issue advanced in these proceedings.
The Court also considered the broader procedural context. It acknowledged that the disputed amount could be significant to the company and Mr Mei, but described it as relatively modest in the context of the litigation history. The proceedings had used a disproportionate amount of time and resources in NCAT and the courts, and the respondents claimed that their legal costs exceeded the amount sought ([39]). The Court also referred to the weakness of the substantive case, relying on the reasons given in the 2023 Tribunal Decision ([39]). That merits discussion was a factor weighing against leave, not a new determination of the underlying causation dispute by the Court of Appeal.
Finally, the Court addressed party status. Mr Mei and the insurer had been added in the leave summons, but no proper joinder application or basis for joinder had been shown ([3]). The Court therefore directed that they be removed as parties ([40]).
The judgment describes the relevant pre-amendment position by reference to s 106(6) of the SSM Act. The NCAT decision treated the applicable period as two years from the time the company became aware of the loss, which it placed in February 2020 ([21]). The April 2022 application was consequently treated as out of time by NCAT and the Appeal Panel ([21], [25]).
The Court of Appeal’s decision was principally about appellate procedure, not a full interpretation of the limitation provision. Its reasons focussed on the leave threshold and the restriction in s 83 of the CAT Act to appeals on questions of law ([28]–[29], [35]–[38]). It did not decide the merits of a new application under the amended limitation period.
At [41], the Court noted that s 106(6) had been amended on 1 July 2025 to increase the period from two years to six years. The Court observed that, on its calculation, the company could have lodged a third NCAT application before 10 February 2026, together with proof of attempted mediation ([41]). That is a statement about the amendment and the historical timing identified by the Court. It should not be read as a determination of any current claim, or as an analysis of every procedural or substantive requirement that might apply to a fresh application.
The Court also expressly said that it was not providing legal advice ([41]). The amendment observation did not change the disposition of the leave application: leave was refused and the summons dismissed with costs ([40]).
At [37], the Court said the February application “was never accepted by NCAT and the related file was closed”. It added that the April application “was a separate proceeding”, as reflected by its separate file number. In plain English, the Court treated the Registry's procedural handling as decisive against the argument that the later filing simply carried forward the earlier one.
At [38], the Court described the out-of-time finding as factual or possibly mixed fact and law. The practical point was that the statutory appeal route being pursued did not permit an appeal on fact alone. The Court therefore considered that the proposed appeal could not succeed through that route on the issue as framed.
At [39], the Court accepted that the amount might matter considerably to the company and its director. It nevertheless weighed that amount against the resources already spent in the proceedings and the weakness of the underlying claim as assessed in the 2023 Tribunal Decision. This explains why the Court treated the case history and merits as relevant to the discretionary leave question.
At [41], the Court recorded the amendment extending the period under s 106(6) from two to six years. Its reference to a possible third application was contextual and retrospective in the judgment. It was not an order allowing a new proceeding, nor a ruling on any claim made under the amended provision.
The decision is most directly relevant where a party seeks leave to appeal an NCAT Appeal Panel decision under s 83 of the CAT Act, and the proposed ground challenges a finding about whether a tribunal application was filed in time. It highlights the need to distinguish an alleged legal error from disagreement with a factual or mixed finding. Here, the Court characterised the specific out-of-time finding as factual or possibly mixed and observed that the appeal below was confined to law ([38]).
It is also relevant where a party argues that a later tribunal filing should be treated as continuing an earlier filing. The material features in this judgment were that the first application was not accepted, its file was closed, and the later application was given a separate file number ([37]). The decision does not establish that separate file numbers will resolve every continuity dispute. It shows that those facts were central to rejecting the argument in this case.
The judgment may also be relevant to discretionary applications for leave where the proposed appeal has a limited monetary value, a long procedural history, and a weak underlying claim. The Court treated those matters as weighing against leave in the circumstances before it ([39]). It did not state that any one of those considerations automatically bars leave.
The decision is less useful as authority on the substantive elements of a s 106 claim or the detailed operation of the amended limitation period. The Court did not determine those matters as the basis for its orders. Its focus was the appeal threshold, the nature of the issue raised, and the procedural distinction between the two NCAT applications.
The judgment contains no information about how later courts have treated this decision. It is dated 1 April 2026 and records no subsequent appellate or judicial treatment. It would therefore be unsupported to describe it as having been followed, distinguished, or applied by later courts.
The judgment itself discusses earlier decisions in the same dispute. It summarises the 2022 Tribunal Decision, the 2023 Appeal Panel Decision, the 2023 Tribunal Decision, the 2024 Appeal Panel Decision and Walton J’s 2025 Supreme Court judgment ([21]–[27]). Those references explain the procedural history and identify the reasoning below. They are not later treatment of the 2026 Court of Appeal decision.
For professional research purposes, the judgment supports a narrow proposition about its own facts: an unaccepted and closed NCAT application was not treated as continuing into a later, separately numbered application, and the out-of-time finding was not a question of law on the ground advanced ([37]–[38]). Whether later courts have adopted or limited that reasoning cannot be established from this judgment alone.
The Court did not decide whether the company’s initial online complaint to Fair Trading itself amounted to an attempt at mediation for the purposes of NCAT acceptance. The judgment records that the Registry did not explain why it considered the information insufficient and says it was unclear whether the complaint was treated as a mediation request or whether actual mediation had to proceed and fail ([12]). The Court did not resolve that uncertainty.
The evidence also did not disclose whether the company made a separate mediation application apart from its online complaint. The Court asked for a copy of any such application, but none was provided ([15]). That evidentiary gap formed part of the procedural history, but the Court of Appeal did not determine its legal effect.
The judgment does not set out a comprehensive test for deciding when a tribunal filing is a question of law, fact, or mixed fact and law. It characterises the specific finding before it as factual or possibly mixed ([38]). The precise characterisation of another limitation dispute would depend on the issue and record in that proceeding.
Nor did the Court determine the merits of the alleged downpipe defect, the cause of the water damage, or the company's substantive entitlement to compensation. It referred to the weakness of the case as described in the 2023 Tribunal Decision when assessing leave ([39]), but the leave application was decided on the procedural and appellate grounds set out in the judgment.
Finally, the Court noted the 2025 amendment to s 106(6), but did not decide how the amended provision would apply to any later application or address all associated procedural requirements. Its observation at [41] concerned the period then available for a possible third application and included the condition of proof of attempted mediation. The judgment leaves questions about any particular later proceeding unanswered.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Hua Nan Trading Pty Ltd t/as Huanan Trading v The Owners Strata Plan No. 32369 [2026] NSWCA 47
Hearing dates: 31 March 2026
Date of orders: 1 April 2026
Decision date: 01 April 2026
Before: Payne JA and Griffiths AJA at [1]
Decision: 1. The summons filed on 11 November 2025 seeking leave to appeal is dismissed, with costs.
2. The second applicant and the second respondent be removed as parties in the proceeding.
Catchwords: APPEAL – Leave to appeal – Application for leave to appeal NCAT Appeal Panel decision under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) – Whether question of fact or question of law – Whether finding of the Appeal Panel that strata application filed out of time concerned question of fact or question of law – Leave to appeal refused
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 41, 80, 83
Strata Schemes Management Act 2015 (NSW), ss 106, 227
Cases Cited: Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2022] NSWCATCD 213
Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2023] NSWCATAP 66
Ha Nan Trading Pty Ltd v The Owners – Strata Plan No. 32396 (Civil and Administrative Tribunal (NSW), D Goldstein Senior Member, 17 November 2023, unrep)
Hua Nan Trading Pty Ltd v The Owners Strata Plan No 32396 [2024] NSWCATAP 192
Hua Nan Trading Pty Ltd t/as Huanan Trading v The Owners Strata Plan No. 32396 [2025] NSWSC 1065
Category: Principal judgment
Parties: Hua Nan Trading Pty Ltd (First Applicant)
Jack Mei (Second Applicant)
The Owners Strata Plan No. 32396 (First Respondent)
CHU Insurance Agent (Second Respondent)
Representation: Counsel:
J Mei (director) (First Applicant)
Self-represented (Second Applicant)
N Simone (Respondents)
Solicitors:
Meridian Lawyers (Respondents)
File Number(s): 2025/00394642
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The first applicant owned a unit in Strata Plan No. 32396. Following heavy rain between 7 and 10 February 2020, water flooded the unit which damaged stock stored in the unit. The first applicant claimed damages from the Owners of Strata Plan No. 32396 under s 106 of the Strata Schemes Management Act 2015 (NSW) (“SSM Act”), on the basis that it was the first respondent’s failure to maintain and repair common property, namely a downpipe, which allegedly caused the stock to be damaged by the rainfall.
On or about 2 February 2022, the first applicant’s sole director, Mr Jack Mei, lodged an application for damages (“the February 2022 strata application”). On 3 February 2022, he was advised by NCAT that the application could not be accepted unless proof of attempted mediation was provided, referring to the requirement in s 227(1) of the SSM Act. On 4 February 2022, the February 2022 strata application and associated file was closed by NCAT. Subsequent mediation between the parties was unsuccessful. Mr Mei then lodged a further application in April 2022 (“the April 2022 strata application”).
Following various proceedings before both NCAT and the Appeal Panel, a second Appeal Panel found that the April 2022 strata application had been brought out of time, as the application had to be brought within two years of February 2020, being the time when the first applicant first became aware of the loss (s 106(6) of the SSM Act). The Appeal Panel also found that there was no reason to extend the period referred to in s 106(6) of the SSM Act under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (“CAT Act”).
The first applicant appealed this decision to the Supreme Court under s 83(1) of the CAT Act, which is confined to appeals on a question of law and requires leave. The only question agitated by the first applicant was whether the April 2022 strata application was filed out of time. It claimed there was continuity between the February 2022 and April 2022 strata applications. The primary judge held that no question of law was raised and leave to appeal was refused.
The Court (Payne JA and Griffiths AJA) held, dismissing the application for leave to appeal:
THE COURT: The first applicant seeks leave to appeal from the judgment of Walton J in Hua Nan Trading Pty Ltd t/as Huanan Trading v The Owners Strata Plan No. 32396 [2025] NSWSC 1065 (primary judgment or PJ). The primary judge dismissed the first applicant’s summons filed 20 February 2025 in which it appealed from the decision of an NCAT Appeal Panel in Hua Nan Trading Pty Ltd v The Owners – Strata Plan No. 32396 [2024] NSWCATAP 192*.*
Mr Jack Mei is the director of the first applicant and he represented the company both below and on the present application. We have taken into account the first applicant’s written submissions dated 13 October 2025 and 31 March 2026.
The summons seeking leave to appeal names for the first time Mr Mei as the second applicant and the first respondent’s insurer as the second respondent. No proper application for joinder of these parties has been made and, in any event, no basis has been shown for joining either of those parties. They should not have been named in the summons.
The first applicant owned a unit in Strata Plan No. 32396. Following heavy rain between 7 and 10 February 2020, water flooded the unit which damaged stock stored in the unit. The first applicant sought to claim damages from the Owners of Strata Plan No. 32396 under s 106 of the Strata Schemes Management Act 2015 (NSW) (“SSM Act”), on the basis that it was the first respondent’s failure to maintain and repair common property, namely, a downpipe, which caused the stock to be damaged by the rainfall. It appears that the first applicant became aware of the damage on or around 10 February 2020.
On or around 2 February 2022, the first applicant electronically lodged an application with NCAT seeking damages pursuant to s 106(5) of the SSM Act (“the February 2022 strata application”).
On 3 February 2022, a staff member of the NCAT Registry advised Mr Mei as follows:
On 3-FEB-2022 the Registrar received your Application for an Order.
The substantive application will not be listed for hearing until you provide information relating to mediation.
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 7-FEB-2022. 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.
Mr Mei was also told by the NCAT staff member that if he needed advice he could contact NSW Fair Trading. Mr Mei acted upon that advice. By an email to the same NCAT Registry staff member on 3 February 2022, Mr Mei said that he had lodged an online complaint with Fair Trading but had not yet been given a complaint number. He added that he expected to be contacted by Fair Trading within 14 days.
Notably, on 4 February 2022 and notwithstanding that Mr Mei had previously been told that he had until 7 February 2022 to provide evidence of attempted mediation, he received an email from a Deputy Divisional Registrar of NCAT which stated that the Registry had not received any information “of attempted mediation”. Mr Mei was told that the February 2022 strata application had not been accepted and that the file was closed.
On 6 February 2022, Mr Mei provided by email to the NCAT staff member the Fair Trading reference number associated with the online complaint (being 10846793).
Also, on 6 February 2022, Mr Mei emailed the Deputy Divisional Registrar, saying that he had contacted Fair Trading and had told NCAT of that fact. He said that he had been following NCAT’s instructions “to attempt the mediation” and asked that the file not be closed.
On 11 February 2022 (being the day after Mr Mei had made a further inquiry with NCAT regarding the status of the February 2022 strata application), he was again told by NCAT that the file relating to that application had been closed and could not be re-opened. He was told that if he wished to lodge a new application he should attach a letter from Fair Trading indicating the outcome of the mediation.
NCAT did not provide Mr Mei with any explanation for its finding that the first applicant had failed to provide evidence of attempted mediation. Thus, it is unclear whether NCAT considered the online complaint to Fair Trading to not itself be a request for mediation or whether, if it did, there was nevertheless no “attempted mediation” unless the mediation had proceeded and failed.
On 17 February 2022, Mr Mei received an email from the Real Estate and Property List section of Fair Trading which acknowledged receipt of the complaint made on 3 February 2022 (with the Reference Number: 10846793), and explained Fair Trading’s role. That role was “to provide information about strata legislation, regulate the conduct of strata managing agents and offer a mediation service to assist in resolving disputes”. Mr Mei was told that if the matter remained unresolved, he could seek mediation, which was provided through Fair Trading’s Mediation Services Unit. He was provided a link to the Fair Trading website if he needed more information about mediation.
On 20 February 2022, the Strata Mediation, Strata and Community Living, Specialist Service section of Fair Trading sent Mr Mei another email headed “” (this is a different Reference Number to that previously provided by Fair Trading in relation to the online complaint). The text of the email is as follows:
Thank you for your application for mediation. This is a system generated email. Please do not respond to this email.
Once your application has been processed, we will write to you with a mediation date.
More information about mediation, including information about preparing for mediation and what happens during mediation, is available here.
Please Click here to download the submitted application form.
The evidence does not disclose whether, in fact, the first applicant made an application for mediation which was separate from his online complaint to Fair Trading. The Court asked the first applicant to provide a copy of any such application for mediation, but none was provided.
On 3 March 2022, the Strata and Community Living section of Fair Trading sent Mr Mei another email headed “Application for Mediation SP 32396 Case – 00664964”. The email noted that the first applicant was entitled to inspect the records of the owners corporation. Mr Mei was provided with a link to the Fair Trading website if he needed additional information. The email included two attachments regarding the “above mentioned application for mediation”.
On 22 March 2022, the Strata and Community Living section of Fair Trading sent another email to Mr Mei. The email was headed “Application for Mediation SP 32396 Case – 00664964”. The body of the email contained an additional heading: “CONFIRMED MEDIATION. SP 32396. File No: 00664964”. The email referred to the application for mediation concerning issues relating to the management of the strata scheme, including “issues relating to strata insurance; the request for compensation for water damage to unit 17; communication and access to records”. Mr Mei was told that there would be a telephone mediation held on 22 April 2022.
On 22 April 2022, by an email sent to Mr Mei from the Mediation Services, Strata and Community Living section of Fair Trading, it was confirmed that the mediation had not reached a final settlement. Mr Mei was told that if he wished to proceed with an application to NCAT he would need to indicate on the application form that he had attempted mediation and that Fair Trading’s letter dated 22 April 2022 would suffice for that purpose.
On 28 April 2022, the first applicant lodged an application for review with NCAT seeking compensation for the damaged goods in the same amount of $64,726.90. The application referred to the February 2022 strata application and stated that NCAT had requested that a new application be lodged after the mediation.
By an email dated 4 May 2022, NCAT acknowledged receipt of the April 2022 strata application and asked for the application fee to be paid. The fee was paid on 6 May 2022.
On 11 November 2022, NCAT, constituted by D Goldstein (Senior Member), dismissed the April 2022 strata application on the basis that the claim for damages had been brought out of time (see Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2022] NSWCATCD 213). NCAT found that the application had to be brought within two years of February 2020, being the time when the first applicant first became aware of the loss (s 106(6) of the SSM Act). The Tribunal also held that s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (“CAT Act”) did not apply to extend the period referred to in s 106(6) of the SSM Act (“the 2022 Tribunal Decision”).
On 6 March 2023, a differently constituted Appeal Panel of NCAT upheld the first applicant’s appeal from the 2022 Tribunal Decision (see Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2023] NSWCATAP 66). It held that the Tribunal did have the power to extend the time under s 106(6) of the SSM Act and remitted the proceedings back to the Tribunal to determine whether the first applicant should be granted an extension of time (“the 2023 Appeal Panel Decision”).
Senior Member Goldstein determined the remitted proceedings on 17 November 2023 (see Ha Nan Trading Pty Ltd v The Owners – Strata Plan No. 32396 (Civil and Administrative Tribunal (NSW), D Goldstein Senior Member, 17 November 2023, unrep)) (“the 2023 Tribunal Decision”). Senior Member Goldstein dismissed the first applicant’s application for an extension of time, finding that the explanation for delay was not satisfactory. He also found that the first applicant had failed to demonstrate that its case was more than “fairly arguable”. The Senior Member emphasised that the first applicant had legal representation when the February 2022 strata application was lodged on or around 2 February 2022.
The Senior Member explained at some length why he considered, based on the evidence before NCAT, that the first applicant had failed to establish that its loss was caused by a defect in the downpipe forming part of the common property. It is well to set out [42]-[43] from the 2023 Tribunal Decision:
Based on the evidence in these proceedings, I am unable to find that the gap in the gutter which I have described caused the applicant’s loss as claimed in these proceedings. The reasons for coming to this conclusion are:
(1) The applicant bears the burden of proving that the gap in the downpipe caused the loss the subject of its claim. It has not produced sufficient evidence to persuade me that the probabilities of the gap in the downpipe caused the loss for which it claims are greater than the possibilities of that not being the case;
(2) The applicant has provided evidence that water entered its lot via the front door. Mr Ersoy agrees. I am not persuaded that the water seen coming under the front door of the lot in the applicant’s USB was from the water that escaped from the gap in the downpipe;
(3) there was heavy rain over three days with strong winds;
(4) I accept Mr Ersoy’s evidence, since he was there at that time, was an experienced plumber and was straightforward and helpful when being cross examined, that:
(a) the gutter above Unit 17 was overflowing over the side of the gutter and on to the archway above the door to the applicant lot and the ground below due to the amount of rain entering the gutter system;
(b) there was a small amount of water coming out of the gap between the downpipe nozzle and the downpipe, which accords with my viewing of the applicant’s USB;
(c) the wind was blowing water from the path towards and under the door of the applicant’s lot;
(d) water entered into the applicant’s lot because wind was blowing directly into the roller door of the lot and rain was hitting the roller door quite severely because of the wind;
(e) the water from the gap in the downpipe was more like shooting out into the courtyard or to the driveway and that he saw it shooting out;
(f) the whole gutter system of the strata scheme was overflowing as a result of torrential rain at several stages.
I would add that the respondent’s evidence on the causation issue was more comprehensive than the applicants which at its highest was that water entered the front door of its lot. As I have stated that in itself does not persuade me that the rain water that escaped from the gap in the downpipe caused the water damage to the applicant’s consigned stock. The contrary evidence is the volume of water that overflowed the gutter system combined with the strong winds that blew rain water into the applicant’s lot through the front door and possibly through the roller door.
(a) whether NCAT had erred in determining that the April 2022 strata application had been lodged out of time; and (b) if the application was filed out of time, whether NCAT erred in not extending the time for application under s 41 of the CAT Act.
The first applicant then appealed the 2024 Appeal Panel Decision to the Supreme Court under s 83 of the CAT Act.
Section 83 provides that:
(1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.
(2) A person on whom a civil penalty has been imposed by the Tribunal in proceedings in exercise of its enforcement or general jurisdiction may appeal to the appropriate appeal court for the appeal on a question of law against any decision made by the Tribunal in the proceedings.
(3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following—
(a) an order affirming, varying or setting aside the decision of the Tribunal,
(b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court.
(4) Without limiting subsection (3), the appropriate appeal court for an appeal against a civil penalty may substitute its own decision for the decision of the Tribunal that is under appeal.
(5) Subject to any interlocutory order made by the court hearing the appeal, an appeal under this section does not affect the operation of the appealable decision of the Tribunal under appeal or prevent the taking of action to implement the decision.
An appeal under s 83(1) of the CAT Act is not an appeal as of right. The appeal requires leave of the Court. Importantly, the appeal is also confined to a question of law.
The sole ground of appeal advanced by the first applicant before the Supreme Court was that the Appeal Panel erred by finding that the April 2022 strata application was filed out of time. It is notable that there was no separate challenge regarding whether or not time should have been extended.
The Supreme Court proceedings raised two key issues:
The first was whether there was a valid appeal from the Appeal Panel pursuant to s 83 of the CAT Act. This question required consideration of whether the Appeal Panel’s determination that the April 2022 strata application was lodged out of time was a question of fact or question of law, given that appeals under s 83 of the CAT Act are confined to the latter.
Second, whether the Court should refuse leave to appeal.
Walton J said at PJ [32] that the only issue on appeal was whether the Appeal Panel erred by finding that the April 2022 strata application was filed out of time. His Honour emphasised that the first applicant was not raising any issue as to whether there should be an extension of time to bring the April 2022 strata application. This was because the first applicant’s “strident position” was that the earlier strata application dated 2 February 2022 was relevant and formed part of a continuing process which linked the February and April strata applications.
Walton J held that as the only issue agitated by the first applicant related to a question of fact alone (or a mixed question of fact and law) and not a question of law the appeal should be dismissed.
In obiter, Walton J added that he would have refused leave to bring the appeal because:
The April 2022 strata application was lodged more than two years after the first applicant first became aware of the relevant loss on or around 10 February 2020.
There was no error in the Appeal Panel refusing leave to appeal on the basis that the appeal had no prospect of success because the April 2022 strata application was filed out of time.
No House v King error was identified.
No substantial miscarriage of justice flowed from the Appeal Panel’s refusal to grant leave.
No issue of principle was involved.
It is common ground that the first applicant requires leave to appeal because of the sum of money involved. It is well-settled that, in general, for there to be a grant of leave to appeal an applicant must establish that the proposed appeal involves an issue of principle, question of public importance, or a reasonably clear injustice going beyond something that is merely arguable.
For the following reasons, leave to appeal will be refused.
The first applicant has not demonstrated any issue of principle, question of public importance, or reasonably clear injustice arising from an error which is more than merely arguable. His essential complaint relates to his claim that the February 2022 strata application and April 2022 strata application are connected in such a way that the primary judge erred in not finding that the NCAT proceedings were validly commenced on 2 February 2022 and before the expiration of the two-year limitation period. This claim was rejected not only by the primary judge but also by NCAT and the Appeal Panel. The claim was doomed to fail in circumstances where, as noted above, the February 2022 strata application was never accepted by NCAT and the related file was closed. The April 2022 strata application was a separate proceeding, as is reflected in the fact that it was given a separate file number by NCAT.
Secondly, the finding in the 2024 Appeal Panel Decision that the April 2022 strata application was filed out of time was a finding of fact or possibly a mixed finding of fact and law. The proceeding before Walton J was confined to a question of law. Accordingly, there was no prospect of the first applicant obtaining leave to appeal in respect of a matter which did not involve a question of law.
Thirdly, although it may be accepted that the monetary amount in dispute may be of considerable significance to the first applicant and Mr Mei, it is relatively modest. As the first respondent points out, the proceedings have already occupied a disproportionate amount of time and resources in both NCAT and this Court. It is unsurprising that the first respondent claims that it has incurred legal costs in excess of the claimed amount. These matters weigh heavily against there being a grant of leave to appeal, not the least in circumstances where the first applicant’s substantive case is so weak for the reasons given in the 2023 Tribunal Decision.
For all these reasons, leave to appeal will be refused, with costs. As we have said, there was no basis shown for joining either the second applicant or the second respondent as parties to the proceedings.
For completeness, we note that, on 1 July 2025, s 106(6) of the SSM Act was amended to increase the limitation period from two to six years. Thus, the first applicant could have lodged a third application with NCAT before 10 February 2026, together with proof of attempted mediation. Of course, it is not the Court’s function to provide legal advice to any party but the first applicant may well rue the fact that it did not seek and obtain timely legal advice after mid-2025.
Hua Nan Trading Pty Ltd t/as Huanan Trading
The Owners Strata Plan No. 32369 [2026] NSWCA 47
The summons seeking leave to appeal was dismissed with costs, and the second applicant and second respondent were removed as parties.