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[2025] NSWSC 1065
General information, not legal advice.
Supreme Court of NSW
2025-09-18
Walton J
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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 v The Owners – Strata Plan No 32396 [2025] NSWSC 1065
Hearing dates: 13 August 2025
Date of orders: 18 September 2025
18 September 2025
Jurisdiction: Common Law
Before: Walton J
Decision: (1) To the extent that the question of leave to appeal arises, leave to appeal is refused.
(2) The Summons is otherwise dismissed.
(3) The plaintiff shall pay the defendant’s costs of the Summons as agreed or, in default of agreement, as assessed.
Catchwords: Administrative Law – Review of administrative decision – Statutory appeal under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) – Whether question of law or fact – Where Appeal Panel finding concerned only a question of fact – Where leave to appeal would nonetheless be refused
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Strata Schemes Management Act 2015 (NSW)
Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
BHP Billiton Ltd v Dunning [2013] NSWCA 421
Colin Davidson v Seachange Living NSW Pty Ltd [2023] NSWSC 292
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)
House v King (1936) 55 CLR 499; [1936] HCA 40
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
Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2024] NSWCATAP 192
Salmon v Albarran [2025] NSWCA 42
Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40
Texts Cited: Nil
Category: Principal judgment
Parties: Hua Nan Trading Pty Ltd T/AS Huanan Trading (Plaintiff)
The Owners Strata Plan No. 32396 (Defendant)
Representation: Counsel:
Mr Jack Mei (Director of Hua Nan Trading Pty Ltd) (Self represented) (Plaintiff)
N Simone (Defendant)
Solicitors:
Hua Nan Trading Pty Ltd) (Self represented) (Plaintiff)
Meridian Lawyers (Defendant)
File Number(s): 2024/399223
Publication restriction: Nil
By a Summons filed in Court on 20 February 2025 (“the Summons”), Hua Nan Trading Pty Ltd (“Hua Nan” or “the plaintiff”) sought to appeal a decision of the New South Wales Civil and Administrative Tribunal (“NCAT” or “the Tribunal”) Appeal Panel (“the Appeal Panel”) made on 3 October 2024 (Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2024] NSWCATAP 192 (“the Decision”)) (“the Appeal”).
Mr Jack Mei (“Mr Mei”), the sole director of Hua Nan, was self-represented and was assisted by an interpreter on the day of the hearing.
The plaintiff owned a unit in Strata Plan No 32396 in Lidcombe, Sydney. In February 2020, heavy rain fell and water entered the plaintiff’s unit. The plaintiff sought to claim damages from the defendant under s 106 of the Strata Schemes Management Act 2015 (NSW) (“the SSM Act”) because of the defendant's failure to maintain and repair common property, namely, a down pipe, which caused the stock located in the plaintiff’s unit to get wet and damaged during the rainfall.
In February 2022, the plaintiff made an application with NCAT for damages pursuant to s 106(5) of the SSM Act (“February 2022 strata application”). However, that application was not accepted by the NCAT registry as the requirement to undergo mediation pursuant to s 227 of the SSM Ac**t had not been satisfied.
Counsel for the defendant, Mr N Simone, submitted that the February 2022 strata application was dismissed by NCAT. However, an email communication of 4 February 2022 from Mr L Harvey (Deputy Divisional Registrar at NCAT) to the plaintiff, communicated that the “application [had] not been accepted and the file [had] been closed”.
Mediation between the parties subsequently occurred on 22 April 2022 and was unsuccessful.
The plaintiff lodged a second application with NCAT in April 2022 (“April 2022 strata application”), which was accepted by the NCAT registry, and the matter was set down for hearing on 9 November 2022. As I will discuss later, it was the core submission of the plaintiff that the April 2022 strata application was not a fresh application but a continuation of the February 2022 strata application.
The remitted proceedings were listed again before Senior Member D Goldstein: 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) (“2023 Tribunal Decision”). In the remitted proceedings Senior Member D Goldstein considered the question of whether the plaintiff should be granted an extension in time. Senior Member D Goldstein acknowledged that in the 2022 Tribunal Decision he found that the April 2022 strata application was lodged out of time (2023 Tribunal Decision at [2]).
On 17 November 2023, Senior Member D Goldstein dismissed the plaintiff’s application for an extension of time. Senior Member D Goldstein found that the plaintiff’s explanation for delay was not satisfactory and that the plaintiff failed to demonstrate that its case had more substantial merit than being fairly arguable.
The plaintiff appealed the 2023 Tribunal Decision under s 80 of the Act.
Section 80 of the Act provides as follows:
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.
The provisions of s 80 of the A**ct were applicable as s 80(1) provided for an appeal from an internal decision, being the 2023 Tribunal Decision.
Subsection 80(2) of the Act provides the scope of an internal appeal. Subsection 80(2)(a) of the Act did not apply to the plaintiff’s appeal, as the 2023 Tribunal D**ecision was not an interlocutory decision. Hence, the plaintiff’s appeal was heard pursuant to s 80(2)(b) of the Act, which provides for an appeal “as of right on any question of law” and with leave of the Appeal Panel “on any other grounds”.
In substance, the plaintiff raised two issues on the appeal from the 2023 Tribunal Decision. First, the plaintiff contended that the Tribunal had erred in determining that the April 2022 strata application was lodged out of time (“question 1”). Secondly, the plaintiff contended that, if the April 2022 strata application was lodged out of time, the Tribunal erred in determining not to extend the time under to s 41 of the Act (“question 2”).
The Appeal Panel, constituted by Senior Member A Bell SC and Senior Member L Wilson, answered both questions in the negative and, in respect of both questions, made orders refusing leave under s 80(2)(b) of the Act.
The Appeal Panel found that question 1 involved a question of fact, thereby limiting the appeal to one requiring leave as opposed to an appeal as of right: the Decision at [38].
In deciding whether to grant leave to the plaintiff in relation to question 1, the Appeal Panel took into account whether the plaintiff "may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or was against the weight of evidence or significant new evidence is now available": the Decision at [38(1)].
The reasons for the Appeal Panel’s refusal of leave in relation to question 1 were as follows:
“[41] Hua Nan did not grapple with the question of leave about this finding of fact, either in its Notice of Appeal, or in its written or oral submissions. Nor was the question ventilated whether it would be an abuse of process for Hua Nan to be permitted to raise in a second appeal a question which had been determined adversely to it in a first appeal.
[42] As it was not argued, we have not considered the question of abuse of process. However we are comfortably satisfied that the application which is the subject of this appeal was lodged outside the two year period prescribed by section 106(6) of the SSMA and that leave to appeal on this ground should not be granted.
[43] The Strata Application that the Tribunal considered on 9 November 2022, while it may have been in similar or identical terms to the application lodged in February 2022, was in fact SC22/19375 which was lodged with the Tribunal in April 2022.
[44] Hua Nan’s submissions on this issue were extensive. It alleged a violation of “the constitutional provisions”, discrimination, unfairness, that if the registrar who closed SC22/04491 did so on the basis of Mr Mei’s “race, my background, my occupation or, only I am not lawyer, it will be criminal offence”: page 10 attached to Notice of Appeal. However, the essence of Hua Nan’s contention was that its Strata Application which was the subject of the 2022 Decision, the First Appeal Decision, and the 2023 Decision, were in fact decisions which determined the application which it lodged in February 2022 as SC22/04491. This is not so.
[45] SC22/04491 was not accepted by the Tribunal and was accordingly dismissed on 4 February 2022.
[46] If Hua Nan wanted to appeal the dismissal of that Strata Application, it could have appealed that decision within 28 days of the decision. It did not do so.
[47] The only Strata Application before the Tribunal was that heard on 9 November 2022, and again after remittal from the Appeal Panel, on 20 September 2023. Those hearings concerned the Strata Application lodged in April 2022. That application was the subject of this appeal. This was not “continuous proceedings” from 2 February 2022 as submitted by Hua Nan.
[48] This aspect of the ground of appeal is not made out and leave to appeal is refused.”
In relation to question 2, the Appeal Panel did not expressly pass upon the issue of whether the appeal involved a question of law, and, therefore, whether the appeal was “as of right”. However, as the Appeal Panel resolved question 2 by refusing leave, as a matter of logic, it must be taken that the Appeal Panel considered that question 2 did not raise a question of law.
The reasons for the Appeal Panel’s refusal of leave in relation to question 2, were as follows:
“[56]…[W]e are comfortably satisfied that the Tribunal made no error in the 2023 Decision in its exercise of its discretion not to extend time, assuming such a discretion existed. We turn now to consider this issue.
[57] As the Owners Corporation set out in its written submissions at paragraph 18, an error in the exercise of a discretion was addressed by the High Court in House v The King (1936) 55 CLR 499. The Owners Corporation included the following quotation from that decision at 505:
If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the conclusion embodied in his order, but, is up on the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law re poses in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[58] We agree with the Owners Corporation’s submission at paragraph 20 that Hua Nan’s general complaint is that the 2023 Decision was “simply wrongly decided”. Hua Nan did not argue that the Tribunal acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect it, or did not consider some material consideration. We have already concluded that the Tribunal did not mistake the facts.
[59] In deciding whether to extend time, the Tribunal in the 2023 Decision correctly considered the merits of Hua Nan’s Strata Application. This is a relevant consideration when a decision maker is considering extending time, and comes from the seminal Appeal Panel decision of Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The Tribunal acknowledged this at [3] of the 2023 Decision. At [22] in Jackson the Appeal Panel held:
The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:
(1)The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];
(2)The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7];
(3)Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:
(a)The length of the delay;
(b)The reason for the delay;
(c)The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and
(d)The extent of any prejudice suffered by the respondent (to the appeal),
- Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and
(4)It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
[60] The Tribunal considered the merits of the Strata Application from [19] to [43] inclusive and then concluded in [44] that “the applicant has not shown that its case has more substantial merit than merely being fairly arguable.” We respectfully agree with the Tribunal’s analysis that Hua Nan’s claim was weak, and this is a relevant matter for the Tribunal to take into account when exercising its discretion not to extend time.
[61] Accordingly the appeal must fail. To the extent required, leave to appeal is refused. The appeal is dismissed.”
Although the plaintiff did not clearly identify the legal basis of the Appeal within the Summons, it became evident, during the course of the hearing of the Appeal, that the Summons constituted an appeal from the Decision under s 83 of the Act.
Section 83 of the Act provides as follows:
83 Appeals against appealable decisions
(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.
The Decision is an appealable decision of NCAT to this Court because it was a decision made by “an Appeal Panel” under an “internal appeal”: s 82(1)(a) of the Act. However, an appeal may only be made on a question of law: s 83(1) of the Act.
An appeal under s 83(1) of the Act is not an appeal as of right but requires leave of this Court. The Appeal is confined to a question of law with respect to any decision made by the Tribunal.
“The decision of NCAT Appeal Panel No. 2023/00449662 which has a substantial miscarriage of justice because: (1) the decision was not fair and equitable; (2) the decision was against the weight of the evidence.“
Those grounds are expressed in wide terms. Counsel for the defendant correctly submitted that the plaintiff had served in support of the Appeal several hundred pages of material which comprised statements and submissions “which are prolix and difficult to follow”. To the extent that material contains serious accusations of misconduct by legal professionals, those accusations are not sustainable and should not have been made by the plaintiff.
It is unnecessary for the Court to consider each and every ground of appeal or what may potentially lie within the broad scope of the Appeal, particularly in the light of the conduct of the Appeal by the plaintiff.
In Salmon v Albarran [2025] NSWCA 42, Leeming JA (Ward ACJ and Ball JA agreeing) relevantly stated (albeit, with respect to appeals brought as of right, which is not this case) at [47]:
“… there is no obligation upon this Court to determine each and every ground, especially where for multiple reasons the ground can make no difference to the outcome, where the only issues are factual and have no consequence to persons other than the parties, and where Mr Salmon did not seek to develop the ground at any point in some five hours of oral address. This accords with what was said in Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [8] that “intermediate courts of appeal should not feel compelled to treat determination of non-dispositive issues in appeals before them as the norm”.”
By the close of the plaintiff’s oral submissions, the issue that the plaintiff intended to be considered on the Appeal became apparent, namely, whether the Appeal Panel erred by finding that the April 2022 strata application was filed out of time (“the Issue”).
That position became abundantly clear when the Court engaged with Mr Mei regarding the question of whether he contended that the Appeal Panel had erred in addressing the question of an extension of time to bring the April 2022 strata application. As the plaintiff was self-represented, the Court examined the question of the Appeal Panel’s determination to refuse leave to appeal in arguendo with counsel for the defendant. When similar issues were raised with the plaintiff, Mr Mei emphatically asserted that no part of the Appeal concerned questions revolving around the prospects of an extension of time to bring the April 2022 strata application, because of the strident position that the application was brought within time.
The following passage, from the transcript of the proceedings, illustrates that position:
“INTERPRETER: First of all I want to say that I have never ‑ actually never applied for extension. My first application was lodged on 2 February 2022. And then on page 111, in the August bundle Mr Harvey ‑ sorry, I just need to clarify. On 4 February 2022 Mr Harvey closed my application. That document is 111 on August bundle.
HIS HONOUR: I have that.
INTERPRETER: So which indicated that I didn't make ‑ I didn't delay the application. And also the other parties' confirmation of para 41. Mr Harvey closed my application with the reason that I did not provide any ‑ attend mediation. However, I was in the process of having the mediation.
…
Then the result of the mediation came out on 22 April 2022. And then on 28 April I refilling out all the applications and make another ‑ and made another application. That was on 28 April. It was the same application which was closed by Mr Harvey at previous location. And that new application date was 28 April 2022.
…
INTERPRETER: Okay. And then what I want to express is in the whole process of this proceeding I have never delayed. And also, according to the Strata Scheme Management Act 2015 section 106 number 5 ‑ number 6, which is on page 262, says that for breaching of a statutory more than two years ‑ I made application within the two years. I took action within two years.
So all the process, all the actions thereafter was actually continuous from the first action. Continued from the first action. Therefore I have never really delayed. There is never any time outside of the two years, and therefore I have never applied for any extension. I am not guilty. Why should I apply for a ‑ there's a sentence with extension.
HIS HONOUR: So can I be clear then? The applicant's sole basis for the appeal he now brings is that he did file ‑ he wishes to say that he did file his application on time.
INTERPRETER: Yes. And also the other point is: because of the strata lack of maintenance, which is causing the damage of ‑ the water damage on 7 February 2020, and during that period of time I had numerous discussions with the strata, and I have also advised them ‑ notified them that I need ‑ I will claim insurance.
…
HIS HONOUR: Can I just interrupt and say ‑ remind the plaintiff that I'm not dealing with the merits of the strata application. I am dealing with an appeal from the tribunal in relation to the question of time.
INTERPRETER: Okay, so in the whole process I didn't have any ‑ I didn't really go out of the time limits, and then maybe someone in the NCAT abusing the power to close my case. So on the decision dated 3 October 2024, page 180, and at paragraph 41, as the other party's counsel mentioned, which she stated that Huanan did not grapple with the question of leave about this finding. I have mentioned for many times that I have never applied for extension. That's the fact.” (emphasis added)
In my view, that exchange, even with a self-represented litigant, is sufficient to exclude consideration as to whether the Appeal Panel was in error in refusing leave to appeal with respect to question 2. That consideration is buttressed by the fact that before the Appeal Panel, that issue was not specifically the subject of any ground of appeal or the subject of direct submissions by the plaintiff. Nor does the issue arise directly from the grounds of appeal or the plaintiff’s submissions in this Appeal.
Whilst the miscellaneous materials relied on by the plaintiff may have some undefined potential connection to the plaintiff’s grounds of appeal, there were no contentions advanced by Mr Mei which would put the defendant on notice of the particular issues raised. The Court is in no better position.
It follows, in my view, that the disposition of the Appeal must be confined to a consideration of the Issue.
It was apparent from the defendant’s submissions that the first issue for consideration, in this Appeal, was whether there was a valid appeal from the Decision for the purposes of s 83 of the Act. The question of validity was focused upon whether the decision of the Appeal Panel, that the April 2022 strata application was lodged out of time, concerned only a question of fact, which is precluded by the terms of s 83 of the Act, which confines appeals to a “question of law”.
Counsel for the defendant also made submissions as to why this Court should refuse leave to appeal.
It is doubtful whether the plaintiff squarely addressed either of those issues. Rather, the plaintiff rehearsed similar arguments to those presented consistently before NCAT that, in substance, the April 2022 strata application had been filed within time because it was a continuation of the February 2022 strata application.
The distinction between what is or is not a question of law is vexed and context dependant: Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 ("Thomas and Naaz") at [52] (Leeming JA (with whom Meagher Ja and Griffiths AJA Agreed)).
In Thomas and Naaz, Leeming JA stated the following in this respect (at [53] to [54]):
"[53] … I do not think it is possible to enunciate a clear test of what is, or is not, a question of law for the purposes of s 83 of the Civil and Administrative Tribunal Act, and in the absence of anything like full submissions on the point there is no occasion to do so. However, to focus upon the points which were addressed in oral submissions, it is well settled in relation to statutes conferring limited rights of appeal from tribunals (which are often of a specialist nature) to a court that a particular finding which is "perverse" or "unreasonable" or "not reasonably open" is not ordinarily a question of law. In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 157, Glass JA, with whom Samuels JA agreed, said that:
…when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the [course] of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council; Australian Gas Light Co v Valuer-General.
[54] It is one thing for a finding to be expressed in terms which bear an ordinary, familiar meaning (such as Glass JA's example of something which did not disclose a question of law, namely, it being "not open to find that the applicant had not suffered an injury to his right knee"). It is another thing where the finding is framed in terms of statutory language which bears a particular legal meaning…"
The question of whether the April 2022 strata application was lodged within time, pursuant to s 106(6) of the SSM Act, represents consideration of a statutory test which, when no challenge is taken to the construction of its terms, is either satisfied or not as a matter of fact or a mixed question of fact and law.
As mentioned, in this case, the plaintiff argued that the April 2022 strata application was lodged within time primarily because the February 2022 strata application was lodged within time, and it was the plaintiff’s contention that the April 2022 strata application was simply a continuation of the February 2022 strata application. The plaintiff did not raise any issue of construction of s 106(6) of the SSM Act. Hence, those contentions did not raise any question of law, but rather, in substance, a question of fact.
I also note that this consideration accords with the Appeal Panel's determination: the Decision at [38(1)].
There cannot be an appeal under s 83 of the Act on a question of fact alone (or a mixed question of fact and law) and, in the result, the Appeal should be dismissed.
In that light, it is unnecessary to consider the question of leave to appeal under s 83 of the Act. Further, the plaintiff did not address leave to appeal.
However, in my view, the Court should, subject to the resolution of the preceding question, nonetheless briefly pass upon the question of leave having regard to the submissions of the defendant.
The question of leave must relate to the refusal to grant leave by the Tribunal with regard to question 1.
The principles as to leave to appeal, in this respect, may be briefly stated.
In BHP Billiton Ltd v Dunning [2013] NSWCA 421 (“BHP Billiton*”)*, Gleeson JA (with whom Macfarlan JA and Young AJA agreed) set out the following principles with respect to a grant of leave to appeal (at [19] and [20]):
“[19] In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary judge was arguably wrong in the conclusion arrived at: Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 per Sheller JA; Zelden v Sewell [2011] NSWCA 56 at [22] per Campbell JA (Young JA agreeing).
[20] Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or an injustice which is reasonably clear, in the sense of going beyond merely what is arguable: Carolan per Kirby P; Jaycar Pty Ltd v Lombardo [2011] NSWCAS 284, Campbell JA (Young and Meagher JJA agreeing) at [46]. See also Lee v New South Wales Crime Commission [2012] NSWCA 276 per Bathurst CJ (Macfarlan and Barrett JJA agreeing).”
“[35] In Coulter v The Queen [1988] HCA 3; 164 CLR 350, dealing with a challenge to a refusal of the South Australian Full Court to grant leave to appeal in a criminal matter, the majority noted that a leave requirement was a preliminary procedure ‘recognised by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention’: at 356 (Mason CJ, Wilson and Brennan JJ). That statement is clearly applicable to civil, as well as criminal, appellate jurisdiction.”
“From Das, it is important to bear in mind that the requirement that an appellant seeking leave to appeal is intended to act as a filter to ensure that unsuitable appellate proceedings are not permitted to run where it would place an undue burden on the other parties, delays to other litigants and disproportionate demands on the resources of the court.”
In my view, leave should be refused to bring the Appeal for the following reasons:
The essential factual sub-stratum has not changed from what was ventilated before the Appeal Panel. The claim which was heard at first-instance was filed on 4 April 2022, being over 2 years after the plaintiff became aware of the relevant loss (10 February 2022), despite the plaintiff having been legally represented for most of that period. [1]
The Appeal Panel refused leave to appeal in the Decision on the basis that the appeal had no prospect of success, as the facts before it demonstrated that the plaintiff had filed the April 2022 strata application out of time. For the reasons I will discuss below under the heading “April 2022 strata application out of time”, in my view, there is no apparent error in the Appeal Panel’s reasoning, in that respect.
There are no identified errors in the exercise of the Appeal Panel’s discretion qua House v King (1936) 55 CLR 499; [1936] HCA 40.
The plaintiff has not identified how it would suffer “a substantial miscarriage of justice” [2] from a refusal by the Appeal Panel to grant leave where, as a matter of fact, the claim was lodged out of time.
There is no issue of principle arising out of the resolution of the Issue: BHP Billiton.
Whilst the plaintiff did not address the question of leave as such, I shall nonetheless deal with the plaintiff’s submissions as to why the April 2022 strata application was not filed out of time, as a factor indicating why leave to appeal should be refused.
The plaintiff advanced the following submissions, in that respect:
An NCAT Registrar closed the February 2022 strata application because the plaintiff had not completed mediation. However, the plaintiff was in the process of having mediation.
An NCAT Registrar told Mr Mei that he was “still able to make the application after the mediation” and “[the Registrar] knows the law very well.”
The April 2022 strata application was “the same application which was closed” by the Registrar in February 2022 and “all actions thereafter was actually continuous from the first action… [t]herefore I have never really delayed. There is never any time outside the two years, and therefore I have never applied for any extension.”
The requirement to undergo mediation is found in s 227 of the SSM Act. Section 227 of the SSM Act provides as follows:
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) an order to appoint, or requiring the appointment of, a strata managing agent,
(b) an order varying or revoking an order that varies or revokes another order by the Tribunal,
(c) an order with respect to waiving, varying or extinguishing a restriction relating to the initial period,
(d) an order allocating unit entitlements,
(e) an order with respect to access to a lot by the owners corporation to inspect or repair common property,
(e1) an order under section 211AG(1) in relation to access to a lot,
(f) an order seeking provision of records to an owners corporation by a former strata managing agent for the strata scheme,
(g) an order with respect to the inspection of records of an owners corporation,
(h) an order imposing a monetary penalty and any associated order as to the payment of costs.
With respect to the plaintiff’s first submission, s 227 of the SS**M Act requires that a registrar “must not accept an application” unless mediation has been attempted but was not successful (s 227(1)(a)), or “a party refused to participate in the mediation” (s 227(1)(b)), or “the registrar considers that mediation is unnecessary or inappropriate in the circumstances” (s 227(1)(c)). Subsections (a) to (c) offer alternative preconditions to satisfy s 227 of the SSM Act. However, the latter two have never been raised and, therefore, do not arise in this case.
As at February 2022, the precondition that mediation had been attempted but was not successful could not be fulfilled as the mediation, on Mr Mei’s submission, had not commenced. The mediation, in fact, did not take place until 22 April 2022.
In answer to the plaintiff’s second submission, I note that the email the plaintiff relied upon of 11 February 2022 was not from a Registrar but from a member of the registry staff at NCAT, a “Senior Registry Officer”. The email was as follows:
“Dear Jack Mei
Your application SC 22/04591 has not been accepted. This file is closed and cannot be re-opened.
If you wish to lodge a new application, please attaching a letter issued from NSW Fair Trading indicating the outcome of the mediation.
Regards…”
NCAT registry staff do not have power to extend time, and, in any event, in my view, this email did not communicate to Mr Mei that he would necessarily still be able to make an application after the mediation. The email was brief and plainly written in the context where no mediation had occurred. The NCAT Registry clearly had not considered the material date that Mr Mei first became aware of the loss he sought to claim. I additionally note that Registry staff are not legally trained and there is no indication in the text of the email that individualised advice, legal or otherwise, was being given.
In relation to the plaintiff’s third submission, first, as earlier mentioned, the plaintiff's argument completely ignores the fact that the February 2022 strata application was never accepted by the Tribunal because the precondition for the filing of the application had not been met, namely, there had not been an unsuccessful mediation for the purposes of s 227(1)(a) of the SSM Act.
Secondly, the email of 11 February 2022 from NCAT Registry staff made it clear that “[t]his file is closed and cannot be re-opened” and goes on to discuss the process of lodging a “new application”. I also note that the file numbers of the applications lodged in February 2022 (SC 22/04591) and in April 2022 (SC 22/19375) were different.
Thirdly, the Appeal Panel considered this question and held, as earlier extracted, that the April 2022 strata application “was not a ‘continuous proceedings’ from 2 February 2022 as submitted by Hua Nan”: the Decision at [47].
The Appeal Panel’s finding, that the April 2022 strata application was a discrete application, not continuous from the February 2022 strata application, and was lodged out of time pursuant to s 106(6) of the SSM Act, does not demonstrate error.
In the circumstances, the Court makes the following orders:
To the extent that the question of leave to appeal arises, leave to appeal is refused.
The Summons is otherwise dismissed.
The plaintiff shall pay the defendant’s costs of the Summons as agreed or, in default of agreement, as assessed.
**********
The 2022 Tribunal Decision at [7]-[8]
Pursuant to cl 12(1) of Sch 4 to the Act, to enliven the discretion to grant leave, the plaintiff was required to satisfy the Appeal Panel that it would suffer “a substantial miscarriage of justice” if leave was refused either because the first-instance decision was “not fair and equitable” or because it was “against the weight of evidence”.
Hua Nan Trading Pty Ltd
The Owners �e" Strata Plan No 32396 [2025] NSWSC 1065
(1936) 55 CLR 499
(1998) 195 CLR 516
(2007) 71 NSWLR 61
(2019) 268 CLR 593
(1985) 4 NSWLR 139