Hua Nan Trading Pty Ltd v The Owners - Strata Plan No 32396 - [2023] NSWCATAP 66 - NSWCATAP 2022 case summary

NCAT Appeal Panel|2022-01-30

d (2020) 103 NSWLR 140; [2020] NSWCA 213 Yong v Antworks Pty Ltd [2016] NSWCATAP 14 Texts Cited: Halsbury's Laws of Australia, online edition Category: Principal judgment Parties: Hua Nan Trading Pty Ltd (Appellant) The Owners - Strata Plan No 32396 (Respondent) Representation: Counsel: N Simone (Respondent)

Solicitors: Meridian Lawyers (Respondent) J Mei (Director) (Appellant) File Number(s): 2022/00358363 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 11 November 2022 Before: D Goldstein, Senior Member File Number(s): SC 22/19375

REASONS FOR DECISION

In this appeal the appellant lot owner commenced proceedings against the respondent for damages for the alleged breach by the owners corporation of its obligation under s 106 of the Strata Schemes Management Act 2015 (the "SSMA") to maintain and repair common property, and for access to certain of the respondent's records.
The Tribunal held that the appellant's claim for damages was not commenced within the time allowed by s 106(6) of the SSMA and that the Tribunal did not have power under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act") to extend that time. The Tribunal did not refer to the appellant's claim for access to documents. The Tribunal dismissed the appellant's application.
There are two points on this appeal. The first is whether the Tribunal was correct in holding that it did not have power to extend time to bring such proceedings. The second was whether the Tribunal overlooked the appellant's claim for access to documents.
In our opinion, and contrary to the decision of the Tribunal, the Tribunal did have power to extend time for the bringing of proceedings for damages, and therefore the Tribunal's decision should be set aside, and the proceedings remitted to the Tribunal to be re-determined. The Tribunal also overlooked the appellant's claim for access to documents, a claim not caught by the time limitation. Accordingly, that matter should also be remitted to the Tribunal.
Our reasons are set out below.

Plain English Summary for the Parties

The Tribunal made a mistake in its decision in saying it could not extend the time for the appellant to bring its case for damages. The Tribunal can extend the time and the case will go back to the Tribunal to decide whether it should.
The Tribunal made a mistake in not considering the appellant's claim for access to documents. That will go back to the Tribunal to be decided.
The respondent is ordered to pay the appellant $1,002 for costs.

The Legislation

The relevant terms of s 106 of the SSMA are: 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) … (4) … (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 2 years after the owner first becomes aware of the loss.
Section 41 of the NCAT Act says: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
To explain the background of the case we also set out the relevant terms of s 227 of the SSMA which were: 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. (4) This section does not apply to applications for the following orders: (a)-(f) … (g) an order with respect to the inspection of records of an owners corporation, (h) ...

The Facts

The appellant alleged that it sustained loss and damage to its lot on 7, 8 and 9 February 2020 because of inclement weather and the alleged breach by the owners corporation of its obligations under s 106(1) and (2) of the SSMA to maintain and repair common property.
The Tribunal made a factual finding that the owner was first aware of its loss on 10 February 2020, or alternatively 2 March 2020. There is no appeal from those factual findings.
On 2 February 2022, the appellant said it filed proceedings with the Tribunal (the "first proceedings", being SC 22/04591). In those proceedings the appellant sought two orders. The first was for damages and the second was for an order to inspect certain records of the owners corporation.
On 3 February 2020 the Tribunal emailed the appellant and said: "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."
The reference to Community Land Management Act 2021 (NSW) in that email (and the subsequent email referred to below) appears irrelevant and may be ignored.
On its face the email from the Tribunal dated 2 February 2020 was incorrect insofar as the appellant sought an order for access to certain of the owners corporation's records. That order would appear to fall within the exception provided for in s 227(4)(g) of the SSMA and, if that be correct, the impediment referred to in the Tribunal's emails to the appellant commencing proceedings for access to those records did not exist.
Later that same day, 3 February 2022, the appellant emailed the Tribunal and said it had logged a complaint with Fair Trading and that it had filled out an online form.
On 4 February 2022, the Tribunal emailed the appellant and said: "On 3 FEB 2022 the Registrar requested that you provide evidence of attempted mediation. No such information has been received by the Registry. 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 that mediation is unnecessary or inappropriate. Therefore, your application has not been accepted and the file has been closed."
On 20 February 2020, the appellant received confirmation of receipt of its application for mediation from Fair Trading and was told that once the application was processed the appellant would be provided with a mediation date.
On 3 March 2020 Fair Trading emailed the appellant and said: "Please find correspondence attached in regards to the above mentioned application for mediation. It has been noted that your outcomes include access certain records (sic) of the owners corporation (bank statements). Please be advised that under the Strata Schemes Management Act 2015 any owner has the right to Inspect the records of the owners corporation … Should you follow the process of inspecting the records and the owners corporation fails to give you access to the records you have the option of applying to the NSW Civil and Administrative Tribunal (NCAT) for a determination. For this order mediation is not required."
On 22 April 2022, a mediation between the parties was conducted by Fair Trading. The mediation was unsuccessful.
On 28 April 2022, the appellant commenced its second proceedings in the Tribunal (the "second proceedings", being SC 22/19375) against the owners corporation seeking the same orders as it had sought in the first proceedings. The appellant said it provided to the Tribunal evidence of the earlier mediation at the time of commencing those proceedings.
We note the Tribunal (in the decision appealed from) said the second proceedings were commenced on 4 (not 28) April 2022, and that is the date of the "Date Received" stamp on the Application Form provided to us. Yet the appellant handwrote the date 28 April 2022 in that same form next to the director's signature and it seems more likely the commencement date was that later date (which was after the mediation). Nothing turns on that difference because, assuming the date used by the Tribunal was incorrect, the second proceedings were 24 days more out of time than the Tribunal assumed.
The second proceedings were heard by the Tribunal on 9 November 2022 and a written decision given two days later.

The Tribunal's Decision

After referring to the terms of s 106 of the SSMA set out earlier in these reasons and having made the factual finding that the owner was first aware of its loss on 10 February 2020, or alternatively 2 March 2020, the Tribunal found that the second proceedings were not commenced within two years of the appellant first becoming aware of its loss and were therefore out of time.
The Tribunal did not refer to the second part of the appellant's application, namely the application for (in substance) an order for inspection of certain records of the owners corporation, a type of order not caught by the two-year period specified in s 106(6) of the SSMA.
The Tribunal then, correctly, turned to the question whether the Tribunal could extend the time for the bringing of the second proceedings pursuant to s 41 of the NCAT Act.
The Tribunal held (at [21]) that s 41 of the NCAT Act does "not apply" to extend the time referred to in s 106(6) of the SSMA. The Tribunal reasoned as follows.
The Tribunal first referred to S & G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190 in which the Appeal Panel held that s 41 of the NCAT Act did not empower the Tribunal to extend the time for bringing proceedings referred to in sub-s 48K(3), (4), (6) and (7) of the Home Building Act 1989 (NSW) (the "HBA"). Those sub-sections said: (3) The Tribunal does not have jurisdiction in respect of a building claim relating to building goods or services that have been supplied to or for the claimant if the date on which the claim was lodged is more than 3 years after the date on which the supply was made (or, if made in instalments, the date on which the supply was last made). (4) The Tribunal does not have jurisdiction in respect of a building claim relating to building goods or services that are required under a contract to be supplied to or for the claimant on or by a specified date or within a specified period but which have not been so supplied if the date on which the claim was lodged is more than 3 years after the date on or by which the supply was required under the contract to be made or, if required to be made in instalments, the last date on which the supply was required to be made. (5) ... (6) The Tribunal does not have jurisdiction in respect of a building claim arising out of a contract of insurance required to be entered into under this Act if the date on which the claim was lodged is more than 10 years after the date on which the residential building work the subject of the claim was completed. (7) The Tribunal does not have jurisdiction in respect of a building claim arising from a breach of a statutory warranty implied under Part 2C if the date on which the claim is lodged is after the end of the period within which proceedings for a breach of the statutory warranty must be commenced (as provided by section 18E). (Emphasis by the Appeal Panel)
In short, the Appeal Panel held (at [52]) that the facts referred to in sub-s 48K(3), (4), (6) and (7) of the HBA are pre-conditions to the exercise of the Tribunal's jurisdiction and thus jurisdictional facts. The Appeal Panel then held (at [53]) that s 41 of the NCAT Act did not give the Tribunal power to extend the times referred to in those sub-sections of the HBA. The Appeal Panel said, at [53]: "The power in s 41 of the NCAT Act to extend time is limited to legislation 'in respect of which the Tribunal has jurisdiction'. The Tribunal has jurisdiction under the Home Building Act but because the Tribunal does not have jurisdiction to entertain a home building claim which has been lodged out of time, s 41 should not be interpreted so as to give the Tribunal that jurisdiction. The conferral of jurisdiction needs to be express. It follows that the Tribunal does not have power to extend the time for making an application because to do so would purport to give the Tribunal jurisdiction it does not otherwise have."
The Tribunal then considered Maher v The Pines Resort Management Pty Ltd T/as Gateway Lifestyle The Pines; Marsh v The Pines Resort Management Pty Ltd T/as Gateway Lifestyle The Pines [2018] NSWCATCD 35 in which a Senior Member of the Tribunal considered, by way of obiter, whether s 41 of the NCAT Act empowered the Tribunal to extend the time for the bringing of an application under s 71 of the Residential (Land Lease) Communities Act 2013 (NSW).
After referring to S & G Homes the Tribunal held (at [29]) that s 41 of the NCAT Act did authorise the Tribunal to extend time under the Residential (Land Lease) Communities Act because: "… s 71 (3) of the RC Act 2013 is not expressed in a manner that clearly states the Tribunal has no jurisdiction if proceedings are not commenced within a certain period of time …"
The Tribunal then held that the facts within s 106(6) of the SSMA were jurisdictional (in the sense mentioned above). The Tribunal said, at [18]: "Section 106(5) of the SSMA confers a right on an owner of a strata lot to bring the type of action referred to against an owners' corporation. The sub section does not expressly confer jurisdiction on the Tribunal. The Tribunal's jurisdiction is addressed elsewhere, namely s232 of the SSMA. Section 106(6) of the SSMA is in a different category to the legislative provision referred to in the cases cited above. It states a legislative requirement that proceedings may not be brought more than 2 years after a lot owner has become aware of a loss arising from an owner's corporations contravention of s 106. I find that s 41 of the NCAT Act will not apply to extend the 2 year period referred to in s106(6) as that would confer on the Tribunal jurisdiction to entertain a claim that the legislation makes clear it does not possess. To put it another way, s 41 only applies to extend the period of time for the doing of anything under legislation. Section 106(6) does not state a time for filing an action or doing anything: it expressly prevents bringing an application outside the 2 year time limit. In my view the power in s 41 to extend does not apply to extend the time limit because that is not a period of time within which something must be done."
The Tribunal said that its decision was similar to that made in Boutenko v The Owners-Strata Plan No 77480 [2022] NSWCATCD 166 where a Senior Member of the Tribunal held, at [109]: "The time limitation period in s 106(6) of the SSM Act is a jurisdictional time limit, equivalent to the time limits to take proceedings in the Tribunal for breach of statutory warranties under ss 38; 188; 18E and 48K of the Home Building Act 1989 (NSW). For the same reasons as were expressed in S & G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190 at [50]-[53], the Tribunal cannot invoke s 41 of the NCAT Act to extend time under s 106(6) of the SSM Act, as it is not a limitation defence but rather a jurisdictional fact that ether exists or doesn't exist."
The Tribunal therefore held that the Tribunal did not possess the jurisdiction to deal with the appellant's application and its claim for damages because the application was filed outside the two-year period referred to in s 106(6) of the SSMA. The Tribunal also held that s 41 of the NCAT Act does not apply to extend the time referred to in s 106(6) of the SSMA.
We note that the Tribunal, and the respondent on this appeal, relied on what was said Tezel v The Owners - Strata Plan No 74232 [2022] NSWCATAP 149 at [43] and [45], namely: "[43] The foregoing analysis recognises that the limitation in SSMA s 106(6) is a time limitation on the bringing of a claim for relief that is crystallised. … [44] … [45] The foregoing interpretation of SSMA s 106(6) recognises, contrary to the observation of the Tribunal in the primary reasons set out earlier with which we respectfully disagree, that s 106(6) has important and distinctive work to do. It prevents (like all time limit provisions) a claimant sitting on its rights beyond a limited period. The consequence of sitting on rights is that a claim based on earlier breach of the strict obligation causing loss is out of time, a consequence which has limited this appellant's rights of claim."
We do not consider Tezel is of any assistance in this case.

The Appeal

The appellant's director was not legally trained, was unrepresented and spoke English as a second language.
The appellant's appeal was to the effect that his proceedings were in time because he had commenced them (the first proceedings) within two years of becoming aware of its loss, and he had only commenced the second proceedings because he had been told to do so and after he had been told to attend a mediation.
Although legally unsound, it is easy to accept that that was the understanding of a person such as the appellant's director and, indeed, for most lot owners who are not legally trained nor entitled to legal representation in the Tribunal without leave (permission from the Tribunal).
The respondent's submissions were generally to the effect that the Tribunal's decision was correct. Against the event we were to decide otherwise, the respondent submitted that the appropriate course would be to remit the matter to the Tribunal as originally constituted.

Extension of Time

In our opinion, and with respect, the Tribunal erred in holding that time under s 106(6) of the SSMA could not be extended by exercising the power granted by s 41 of the NCAT Act.
The reasoning of the Tribunal, at [18], contains two different bases for the Tribunal's decision.
The first is the holding of the Tribunal that s 106(6), on its proper interpretation, operates to deprive the Tribunal of jurisdiction to hear any claim brought more than two years after the lot owner became aware of the loss, impliedly in the same way sub-s 48K(3), (4), (6) and (7) of the HBA does so (as held in S & G Homes). This is the meaning we take from the words in [18] of the Tribunal's decision: "… I find that s 41 of the NCAT Act will not apply to extend the 2 year period referred to in s106(6) as that would confer on the Tribunal jurisdiction to entertain a claim that the legislation makes clear it does not possess. …" (Emphasis ours)
Second, the Tribunal held that the proper interpretation of s 41 was to the effect that it did not apply to s 106(6). That is, the Tribunal said, s 41 only applied where legislation provided for the doing of something, and s 106(6) did not state a time for the doing of anything. This is the meaning we take from the words in [18] of the Tribunal's decision: "… To put it another way, s 41 only applies to extend the period of time for the doing of anything under legislation. Section 106(6) does not state a time for filing an action or doing anything: it expressly prevents bringing an application outside the 2 year time limit. In my view the power in s 41 to extend does not apply to extend the time limit because that is not a period of time within which, something must be done. …"
The question is, of course, one of statutory interpretation. We shall discuss each of the Tribunal's bases for its holding in the same order as the Tribunal.
We infer from the passage from the Tribunal's reasons quoted at [45] above that the Tribunal considered the temporal element of s 106(6) as being a jurisdictional fact, in the same way the temporal elements in sub-s 48K(3), (4), (6) and (7) of the HBA were considered to be jurisdictional facts in S & G Homes.
We do not agree that the temporal element in s 106(6) of the SSMA is a jurisdictional fact. Our reasons for so holding are set out later in these reasons.
However, even if we were wrong about that, and the temporal element is a jurisdictional fact, that does not mean that Parliament could not provide for that temporal element to be expanded by a provision such as s 41 of the NCAT Act if that was Parliament's intention. That is to say, there is no authority that we can find which says that it is beyond Parliament's power to provide for the expansion of a temporal jurisdictional fact. Thus, the mere fact the temporal element in s 106(6) is a jurisdictional fact does not, of itself, mandate the conclusion that s 41 could not apply. Rather, it is a matter of statutory interpretation whether one provision can extend a time period set out in another.
Such was the point under consideration in David Grant & Co Pty Ltd v Westpac Banking Corp (1995) 184 CLR 265; [1995] HCA 43.
That case was concerned with whether the power to extend time granted by s 1322(4)(d) of the Corporations Law extended to the time limitation (the temporal element) set out in s 459G(2).
Section 459F of the Corporations Law provided for the service of statutory demands for winding up in insolvency. The section provided that the period for compliance with a statutory demand was, in the absence of an application being made under s 459G, 21 days after the demand was served.
Section 459G said that any such application "may only" be made within 21 days of service of the demand. The section said: (1) A company may apply to the Court for an order setting aside a statutory demand served on the company. (2) An application may only be made within 21 days after the demand is so served. (3) An application is made in accordance with this section only if, within those 21 days: (a) an affidavit supporting the application is filed with the Court; and (b) a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company."
In that case statutory demands were served on the appellants on 4 July 1994, but the applications to set those demands aside was filed on 26 July 1994, being one day outside the 21 days referred to in s 459G(2).
Section 1322(4)(d) of the Corporations Law provided for extensions of time. It said: (4) Subject to the following provisions of this section but without limiting the generality of any other provision of this Law, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes: (a)-(c) … (d) an order extending the period for doing any act, matter or thing or instituting or taking any proceeding under this Law or in relation to a corporation (including an order extending a period where the period concerned ended before the application for the order was made) or abridging the period for doing such an act, matter or thing or instituting or taking such a proceeding; and may make such consequential or ancillary orders as the Court thinks fit.
Gummow J, with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed held, at 278, that the requirement in s 459G for the relevant application to be made only within 21 days after service of the demand "should not be treated as supplemented or qualified by the operation of s 1322(4)". This is, in substance, the same holding made by the Tribunal in this case.
His Honour regarded the temporal element of s 459G(2) as a jurisdictional fact, just as the Tribunal did for s 106(6). At 276.5 his Honour said: "In addition, the temporal requirements in sub-ss (2) and (3) of s 459G operate to define the jurisdiction of the court in respect of an application to set aside a statutory demand."
And at 276.9-277.3 his Honour said: "In providing that an application to the court for an order setting aside a statutory demand " may only" be made within the twenty-one day period there specified and that an application is made in accordance with s 459G only if, within those twenty-one days, a supporting affidavit is filed and a copy thereof and of the applications are served, sub-ss (2) and (3) of s 459G attach a limitation or condition upon the authority of the court to set aside the demand. ... The force of the term 'may only' is to define the jurisdiction of the court by imposing a requirement as to time as an essential condition of the new right conferred by s 459G. An integer or element of the right created by s 459G is its exercise by application made within the time specified."
The first point to observe is that at no stage did the High Court hold that the mere fact that the temporal element of s 459G was a jurisdictional fact automatically meant that s 1322(4)(d) could not apply. Put another way, the High Court did not hold that temporal jurisdictional facts were beyond expansion by another appropriately worded provision. Their Honours simply decided, as a matter of statutory interpretation, that s 1322(4)(d) did not do so.
Rather, Gummow J's reasoning was all about statutory interpretation. That is, on the proper interpretation of the two sections and in the context of the Corporations Law as a whole, the question was whether s 1322(4)(d) empowered a court to extend the time period referred to in s 459G. Gummow J said, at 275.8, that the difficulty in interpretation arose: "…not so much from the particular text of either s 459G or s 1322, as from the interrelation between the two provisions in circumstances where the enactment of s 1322 preceded that of s 459G, and the earlier section is general and the later section specific in its operation.
As we read [53] of S & G Homes, the Appeal Panel approached the interpretation of sub-s 48K(3), (4), (6) and (7) of the HBA and s 41 of the NCAT Act in the same way. That is, it was a question of statutory interpretation whether s 41 empowered the Tribunal to alter the temporal element in the sections mentioned in the HBA. It was not a process of simply deciding whether the temporal element was a jurisdictional fact and, having decided that it was, holding that therefore s 41 could not apply. If the Appeal Panel so held then we would respectfully disagree with that conclusion.
Further, on the question of jurisdiction, and if the holding in S & G Homes was to the effect that the Tribunal had no jurisdiction to even consider whether an extension of time should be granted because of the terms of sub-s 48K(3), (4), (6) and (7) of the HBA, we would respectfully disagree.
We discuss this at greater length below, but if the Tribunal has general jurisdiction over a matter, then it also has specific (and express) jurisdiction under the NCAT Act to make interlocutory orders to extend time. At the stage of the proceedings when the Tribunal is being asked to extend time, the Tribunal is exercising its jurisdiction under s 41 of the NCAT Act. In doing so, it has the jurisdiction to consider, that is the authority to decide, whether to extend the time for the "doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation" (per the terms of s 41). Whether the Tribunal then has the power to extend time, that is whether s 41, in its terms, allows for an extension of time in s 106(6) of the SSMA, is a different question.
Whilst on S & G Homes, and diverting briefly from David Grant, we disagree with the Appeal Panel's statement in [53] to the effect that, if s 41 were to provide jurisdiction, it had to be express (which we take to mean by the use of clear words to that effect). As we understand it, it is not the law that the conferral of jurisdiction may only be by express words.
Tribunals, and courts for that matter, have some implied jurisdiction. For example, they have implied jurisdiction to control their own procedures and to prevent abuses of process. In Halsbury's Laws of Australia, online edition, it is said at [130-13100] (footnotes omitted): "Every court has the power necessary to effectively carry out the jurisdiction conferred upon it by statute and to prevent unfairness. In relation to an inferior court, these powers are implied from the grant of power by the legislature. If there is no specific procedure provided by statute, the court has implied jurisdiction to devise or regulate its own procedures. A court generally has implied power to stay proceedings before it as an abuse of process."
Gleeson CJ and McHugh J referred to the fact that jurisdiction may be inferred as well as expressed in Minister For Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20 at [2] where their Honours said: "Section 77 confines the jurisdiction of federal courts to the "matters" mentioned in ss 75 and 76 of the Constitution. In turn, this requires that the conferral of jurisdiction identify - expressly or inferentially - the substantive legal rights, privileges, liabilities or duties of persons who are the subject of the conferral or investing of federal jurisdiction for the purposes of assessing whether jurisdiction has been conferred in respect of a constitutional "matter". (Emphasis ours)
The Court of Appeal has recently held that the Tribunal has jurisdiction, which is not express (in the sense of clear words to that effect) in two respects.
In Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213 Leeming JA, with whom Macfarlan JA agreed, said at [12] that the Tribunal had implied jurisdiction to decide whether claims made to it were within its jurisdiction.
A couple of months later, in Vickery v The Owners - Strata Plan No 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284, Basten and White JA held that the Tribunal had jurisdiction to hear and determine a claim for damages under s 106(5) of the SSMA even though there was no express provision to that effect in s 232 of the SSMA. The chapeau of s 232(1) says: "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: …
In relation to those words Basten JA said at [51]: "In short, the legislative history demonstrates that the language found in the chapeau to s 232(1) has at all stages been understood as sufficiently broad to encompass an order for the payment of damages."
Thus, the conferral of jurisdiction need not be by express words, but may be implied or inferred.
Returning to David Grant, Gummow J approached the question of statutory interpretation as follows. His Honour first accepted that s 1322(4)(d) conferred broad authority to extend the period for the taking of any step under the Corporations Law (at 275.9). However, his Honour observed, the later provision in time, namely 459G, was made with respect to a particular class of application and there was attached a specific limitation as to the time within which an application may be made.
His Honour considered it significant that the legislative scheme established by the new Pt 5.4 (in which s 459G was found) itself contained specific provisions conferring upon the court an express power to extend time.
His Honour also considered it significant to consider the consequences upon the presumption of insolvency under s 459C(2), an important element of the scheme of Pt 5.4. His Honour said (at 278.5): "These matters emphasise the importance of s 459G as an integral part of the particular scheme established by Pt 5.4. Paragraph (d) of s 1322(4) empowers the court to make an order where the period concerned ended before the application to extend it is made. An application to set aside the demand made not within the twenty-one days specified in s 459G but within another period allowed pursuant to an order under s 1322(4), could not modify what otherwise would be the operation of the definition of the " period for compliance" with the statutory demand set out in s 459F(2). That in turn would not change the answer to the question posed under s 459c(2) as to whether the court must presume the company to be insolvent because it had, within the period there specified, failed " as defined by s 459F" to comply with the statutory demand."
His Honour then held (at 278.8) that for all of those reasons: "… the requirement in s 459G that the application to the court for which it provides be made only within twenty-one days after service of the demand should not be treated as supplemented or qualified by the operation of s 1322(4)."
We shall now turn to the legislation with which this case is concerned and interpret them in accordance with established principles such as those set out in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. The basal principle was described in that case as follows (footnotes omitted): "[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined " by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that " the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. [70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court " to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme."
In that case there was one statute which was the subject of the interpretive exercise, whereas in the present case there are two and, importantly, how the two statutes operate together. In approaching that latter exercise, the interoperability of the two statutes, we have applied the same principles as are applied when different provisions of the same statute are being examined.
Sections 28(1) and (2)(a) of the NCAT Act provide jurisdiction to the Tribunal as follows: 28 Jurisdiction of Tribunal generally (1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation. (2) In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction - (a) the general jurisdiction of the Tribunal, …
Section 29(1)(a) of the NCAT Act says that the Tribunal has general jurisdiction over a matter if: … legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter …
The SSMA is such legislation (as is the HBA - see S & G Homes at [53]). In Vickery, at [26], Basten JA said that s 232 of the SSMA confers functions on the Tribunal i.e. jurisdiction, and the Tribunal in this case came to the same view, correctly with respect, at [18], wherein the Tribunal said: "Section 106(5) of the SSMA confers a right on an owner of a strata lot to bring the type of action referred to against an owners' corporation. The sub section does not expressly confer jurisdiction on the Tribunal. The Tribunal's jurisdiction is addressed elsewhere, namely s 232 of the SSMA."
Therefore, the Tribunal had general jurisdiction in relation to the appellant's application.
The Tribunal is also expressly given jurisdiction to make interlocutory decisions in proceedings over which it has general jurisdiction- s 29(2)(a) of the NCAT Act.
"Interlocutory decision" is defined in s 4 of the NCAT Act to mean a decision: … made by the Tribunal under legislation concerning any of the following - (a)-(c) … (d) the extension of time for any matter (including for the lodgement of an application or appeal), made by the Tribunal under legislation concerning, amongst other things, the extension of time for any matter, …
Section 4 defines "legislation" as "an Act or a statutory rule", and therefore that definition would include the NCAT Act itself [noting that the NCAT Act is not excluded in this definition as it is excluded, for example, in s 29(1)(a)].
The effect of those provisions, together with s 232 of the SSMA Act, is that the Tribunal is given general jurisdiction over a matter involving the SSMA, including jurisdiction to make an interlocutory decision to extend the period of time for the doing of anything under the SSMA (being "any legislation in respect of which the Tribunal has jurisdiction") despite anything to the contrary under that legislation.
Section 41 is expressed in broad language and there is no warrant to read its provisions down. It is a beneficial provision contained in a statute designed to service mostly non-legally trained and legally unrepresented parties, including parties from culturally and linguistically diverse communities (see below at [99]-[101]). Its text, context, the general purpose and policy of the provision and the NCAT Act generally, and its consistency and fairness, all suggest full meaning and effect should be given to the plain words of the section without any limitations not expressed in the provision itself.
As Gummow J held in David Grant at 275.10 (footnote omitted): "As a general precept, it is inappropriate to read provisions which confer jurisdiction or grant powers to a court by the making of implications or imposition of limitations not found in the express words of the legislative provision."
That statement of principle reflects the nub of the ratio in S & G Homes (as we understand it) and the nub of why a different position is reached in relation to s 106(6).
Under the HBA jurisdiction is given to the Tribunal under s 48K(1), which says that: The Tribunal has jurisdiction to hear and determine any building claim brought before it in accordance with this Part in which the amount claimed does not exceed $500,000 (or any other higher or lower figure prescribed by the regulations).
There then followed sub-s 48K(3), (4), (6) and (7) of the HBA each of which contained the words "(T)he Tribunal does not have jurisdiction in respect of" followed by a description of the matter Parliament thought best to exclude from the Tribunal's jurisdiction.
In contradistinction to the HBA, the structure of the SSMA is different. The provision conferring jurisdiction under the SSMA is in a different provision (namely, s 232) to that the Tribunal held limited that jurisdiction [s 106)(6)]. No such limitation appears in s 232 as it did in s 48K of the HBA.
As Basten JA said in Vickery, and as the Tribunal said in the proceedings appealed from, general jurisdiction under the SSMA is given to the Tribunal under s 232, and there is no express limitation of the Tribunal's jurisdiction in that provision.
Further, there are no express words in s 106(6) which have the effect of limiting the Tribunal's powers (as distinct from being directed to lot owners). That is, under the HBA for example, sub-s 48K(3), (4), (6) and (7) of the HBA are each expressly directed to the Tribunal whereas s 106(6) is directed to the owner. When one is determining whether s 106(6) goes to jurisdiction rather than being a procedural provision, that difference is telling.
The next matter to observe is that s 41, in its terms, says that the Tribunal may extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. That is, s 41 is expressed as overriding any provision to the contrary in the legislation which confers general jurisdiction on the Tribunal.
Those clear words, in our view, indicate that so far as the subject matter of s 41 is concerned, s 41 is to be treated as the dominant provision and any limitation in the legislation which conferred general jurisdiction is to be treated as the subordinate provision.
Sub-section (2) of s 41 also makes clear that time may be extended even though the relevant period of time has expired. Put another way, the Tribunal has jurisdiction to make an interlocutory decision extending time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary in that legislation and even though the relevant period of time has expired.
The terms of s 41 of the NCAT Act are broad. The power conferred is even broader than other statutory provisions allowing for extensions of time because the Tribunal may extend time of its own motion. That power surely reflects the fact that most SSMA owners in the Tribunal will not be legally trained nor permitted legal representation without leave - s 45 of the NCAT Act.
In the Second Reading Speech of the Civil and Administrative Tribunal Bill 2012 the Attorney-General said that the Tribunal would be an amalgam of 23 tribunals or other bodies. Proceedings in the Tribunal would be "cheaper, faster and less formal" than court proceedings. The Tribunal would "reach out to culturally and linguistically diverse communities" and would ensure that "users benefit from forms and materials that are simple and easy to understand".
Section 3 of the NCAT Act provides that the objects of the Act included ensuring that the Tribunal is accessible and responsive to the needs of all of its users, and to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible.
In the context of many litigants in the Tribunal not being legally trained, not having access to legal representation and many being from culturally and linguistically diverse communities, there are no indications in the NCAT Act, whether by way of structure, text or context, to limit or constrain the broad wording of s 41 in relation to extensions of time in matters over which the Tribunal has general jurisdiction.
Thus, pursuant to s 41, the Tribunal may extend the time "for the doing of anything" under any legislation which is within the Tribunal's general jurisdiction and "despite anything to the contrary under that legislation". Section 41(2) makes it clear that the Tribunal may do so "even though the relevant period of time has expired".
The Tribunal's second reason for finding s 41 did not apply was its holding that s 41, by its terms, could not apply to s 106(6) because the latter section "does not state a time for filing an action or doing anything" and that the time limit in that section "is not a period of time within which something must be done".
In our opinion that is an unduly narrow reading of the very broad terms of s 41 which is not warranted by the scheme of the NCAT Act, the scheme of the SSMA, nor by textual, contextual or purposive considerations.
It is true that s 106(6) does say that an owner "may not bring an action" more than 2 years after the owner first becomes aware of the loss, the "may not bring an action" being the prohibitive words which the Tribunal obviously had in mind. But in our opinion, taking a purposive rather than literal approach, those words simply convey that an owner must do something (bring an action) within two years. That is, by necessary implication, the words are referring to the doing of something within two years which, if not done (or if time were not extended), would prevent the owner seeking damages.
Interpreting s 106(6) of the SSMA and s 41 of the NCAT Act as we have held brings coherence and a harmonious operation to the scheme under the two acts where they must operate together.
It produces a just result for the users of the Tribunal who are not legally trained or qualified and would know little if anything of time limitations. It allows for extensions of time in circumstances where the two-year time period is affected by the pre-conditions to commencing proceedings set out in s 227 of the SSMA, our point being that the time taken to attempt a mediation is, at least to some extent, out of the control of the owner. In this case the time between the application for a mediation and the holding of the mediation was 11 weeks and two days.
Our interpretation does not provide carte blanche to delinquent owners to sit on their rights. Once the two-year period has elapsed such owners would need to convince the Tribunal that time should be extended.
For those reasons we are of the opinion that the Tribunal erred, and that the Tribunal did have power to extend the time for the appellant to bring his proceedings for damages.
Accordingly, the matter shall be remitted for determination according to law. No doubt the Tribunal will consider the fact that the non-legally trained non-legally represented appellant from a different cultural and linguistic background attempted to commence proceedings (the first proceedings) within the two-year period set out in s 106(6) of the SSMA.

Access to Records

We have mentioned earlier in these reasons that the second proceedings, in which this appeal has been brought, included an application for an order that the appellant have access to certain records of the respondent.
That application is not subject to the time limit in s 106(6) and thus should not have been dismissed for being out of time under that section.
That matter was overlooked by the Tribunal, which gives rise to a question of law, and it should also be remitted to the Tribunal.

Costs of the First Instance Hearing

During the hearing of the appeal, it was drawn to our attention that the Tribunal had subsequently delivered a costs judgment ordering the appellant to pay the respondent's costs of the proceedings at first instance as agreed or assessed.
At the hearing of the appeal, and by consent, we stayed enforcement of that order pending the decision in this appeal.
As the appellant has been successful the Tribunal's costs decision of 15 December 2022 should be set aside. The cost of the first instance hearing should be determined by the Tribunal which determines the remitted proceedings. The costs of the first instance proceedings, excluding the hearing costs, should be costs in the cause of the remitted proceedings.

Costs of the Appeal

In the directions made by the Appeal Panel on 7 December 2022 both parties were directed to include any submissions on costs of the appeal with their submissions on the principal issues. Both parties complied with that direction.
We note that the appellant informed us that it sought costs of the appeal and that its costs included the time taken by the appellant's director in preparing the appeal. The appellant sought $15,000 for those costs together with $1,418.79 for the original application fee, summons fee, appeal filing fee ($902), postage, car parking and printing fees.
The respondent did make any submissions on costs other than that the appeal should be dismissed with costs.
The amount claimed or in dispute on the appeal, in substance, is greater than $30,000 and so special circumstances need not be established before an award of costs can be made - Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57].
We pointed out to the appellant that the only costs recoverable were legal costs i.e. fees charged by lawyers, together with disbursements - Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [107].
We are satisfied that the costs issues for determination can be adequately determined in the absence of the parties by considering their written submissions, and therefore dispense with an in-person hearing in relation to those issues pursuant to s 50(2) of the NCAT Act.
The appellant has succeeded in its appeal and, ordinarily, costs should follow the event. There is no suggestion of disentitling conduct which would militate against the making of such an order.
The respondent should pay the appellant's costs constituting the filing fee of the appeal ($902) together with a lump sum of $100 for photocopying, postage and other disbursements in relating to the appeal (making a total of $1002) pursuant to s 60 of the NCAT Act.

Remitter

The respondent submitted that the proceedings should be remitted to the Tribunal as originally constituted. Such an order should ordinarily be made unless there be a good reason to the contrary - see Minister for Immigration and Mulitcultural Affairs v Wang [2003] 215 CLR 518; [2003] HCA 11 per Gleeson CJ at 525-6, McHugh J at 533, Gummow and Hayne JJ at 541-2, Kirby J at 566, Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 per Mason P, with whom Ipp JA agreed, at [12]-[15], BCS v NSW Civil and Administrative Tribunal [2015] NSWSC 126 at [53]-[54]; Yong v Antworks Pty Ltd [2016] NSWCATAP 14 at [137]-[138].
There being no good reason to the contrary, the proceedings will be remitted to the Tribunal as originally constituted if practically possible. That is, if the Senior Member who made the decision appealed from is available to hear the remitted proceedings within a reasonable time.

Orders

We make the following orders: 1. The appeal is upheld. 2. The decisions of the Tribunal dated 11 November 2022 and 15 December 2022 are set aside. 3. The proceedings are remitted to the Tribunal as originally constituted, if practically possible, to be determined according to law. 4. A hearing of the costs issues is dispensed with. 5. The respondent is to pay the appellant the sum of $1,002 for costs of the appeal. 6. The cost of the first instance hearing should be determined by the Tribunal at first instance. 7. The costs of the first instance proceedings, excluding the hearing costs, should be costs in the cause of the remitted proceedings.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 March 2023

(2020) 103 NSWLR 352

(2020) 103 NSWLR 140

Hua Nan Trading Pty Ltd v The Owners - Strata Plan No 32396

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