Lane v The Owners Strata Plan No 2404

Australian Education Union v Department of Education and children's Services (2012) 248 CLR 1; [2012] HCA 3

Bruce v Knight [2021] NSWCATAP 224

Bull v Attorney-General (NSW) (1913) 17 CLR 370; [1913] HCA 60

Choi v The Owners Strata Plan .53482 [2024] NSWCATAP 233

Collins v Urban [2014] NSWCATAP 17

Deputy Commissioner of Taxation (SA) v Elders' Trustee and Executor Co Ltd (1936) 57 CLR 610; [1936] HCA 64

Dranichnikov Minister for Immigration and Multicultural Affairs [2003] HCA 26

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Esso Australia Pty Ltd v Australian Workers' Union (2017) 350 ALR 404; [2017] HCA 54

Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378

Grain Elevators Board (Vic) v Dunmunkle Shire (1946) 73 CLR 70; [1946] HCA 13

GS & CS Holdings Pty Ltd v The Owners Strata Plan No.63227 [2022] NSWCATAP 206

House v R (1936) 55 CLR 499; [1936] HCA 40

Jennifer Elizabeth James v The Owners Strata Plan No. SP 11478 (No. 4) [2012] NSWSC 590

Interlego AG v Croner Trading Pty Ltd [1992] FCA 624; (1992) 39 FCR 348; 111 ALR 577

Khadibzad v The Owners Strata Plan 53457 [2019] NSWSC 157

Kolwy v Secretary, Department of Social Services [1992] FCA 489; (1992) 38 FCR 295; 110 ALR 38

Macey's Group Pty Limited v Owners Strata Plan No.33591 [2021] NSWCATAP7

Micallef v ICI Operations Australia Pty Ltd [2001] NSWCA 274

Ormond Investment Co v Betts [1928] AC 143

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Resource Pacific Pty Limited v Wilkinson [2013] NSWCA 33

SAS Trustee Corporation (2018) 361 ALR; [2018] HCA 55

Schwartz Family Co Pty Limited v Capital Carpets Pty Limited [2017] NSWCA 223

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Whalan v Australian Securities Commission (No. 2) (1994) 58 FCR 352; 33 ALD 53

Wichai Ruamsri v The Owners- Strata Plan 54275 [2019] SCS19/31956

1. By Notice of Appeal filed on 25 June 2025, Brett Lane and Kattya Lane (the Appellants) appealed against orders made by the Tribunal on 29 May 2025 in proceedings between the Appellants and The Owners - Strata Plan No 2404 (the Respondent).
2. On 18 July 2025, the Respondent filed a Reply to Appeal seeking the dismissal of the appeal.
3. The appeal was heard on 23 October 2025. At the conclusion of the hearing of the appeal, the Appeal Panel granted leave to the Appellants to file an Amended Notice of Appeal in order to formalise the grounds on which the Appellants ultimately relied.

1. By their Amended Notice of Appeal filed on 27 October 2025, the Appellants' grounds of appeal asserted:

"Ground 1: The Tribunal erred on a question of law by determining that The Owners Strata Plan No 2404 (the Owners Corporation) did not require the consent of the Appellants to amend by-law 28.

The question of law being: As of 13 December 2023, in order to amend a common property rights by-law, did an owners corporation require the consent of a lot owner on whom the by-law conferred rights or special privileges?

Ground 2: The Tribunal erred on a question of law, or alternatively a mixed question of law and fact, or alternatively on a finding of fact, in declining to revoke the amendment made to by-law 28 by the 5 December 2023 resolution (the 2023 resolution) in that:

(a) There was a constructive failure to exercise jurisdiction in that the Tribunal did not adequately consider or give due regard to "the interests of all owners of lots in a strata scheme in the use and enjoyment of their lots or the common property".

(b) The Tribunal did not give due regard to the interests of all lot owners in not having their own exclusive use rights removed without their consent.

(c) The Tribunal did not give due regard to the adverse effect on all other lot owners because it creates uncertainty about how exclusive use rights work within the strata scheme.

(d) The Tribunal took into account an irrelevant consideration at [97(5)] of the Decision by taking into account whether each lot owner should have a parking space, in circumstances where:

(i) s148(1) of the Strata Schemes Management Act 2015 (NSW) empowers the Tribunal to assess an application by a person entitled to vote on "the" amendment and to consider whether to make an order that "the amendment", or "the repealed by-law" or "the additional by-law" be revoked, revived or appealed;

(ii) s148(2) of the Strata Schemes Management Act 2015 (NSW) directs the Tribunal to consider the interest of all owners of lots in a strata scheme to determine whether "the change" under review (not any anterior or other change) should not have been made;

(iii) on the proper construction of s148, including by reason of the use of the definitive article and having regard to the nature of the application, the section does not allow the Tribunal to consider whether one or more previous resolutions (not being the resolution for which application has been made) were proper and/or appropriate;

(iv) the amendment to by-law 28, being the relevant resolution under review by the Tribunal at first instance, only had the effect of removing the rights of one lot owner and granting them to another owner and did not call for a challenge to any anterior resolutions; or alternatively, the Tribunal placed undue weighting on this consideration.

(e) The Tribunal Member mistakenly or wrongly concluded at [97(1)] of the decision that each resolution passed on 12 December 2013, 13 April 2015 and 14 September 2017, "intended to grant the owner of Lot 2 exclusive use of car space 9".

(f) The Tribunal did not give due regard to the fact that at the time that the Appellants purchased Lot 1, the by-laws recorded on title identified that Lot 1 had exclusive use rights to car space 9.

(g) The Tribunal did not give any or adequate consideration to an exclusive use by-law granting proprietory rights to a lot owner."

1. On 3 November 2025, pursuant to the Appeal Panel's orders, the Respondent filed further submissions in opposition to the Appellants' amended grounds of appeal.
2. On 5 November 2025, pursuant to the Appeal Panel's orders, the Appellants filed submissions in reply to the submissions of the Respondent of 3 November 2025.
3. In addition to the documents identified above, the Tribunal had before it on the hearing of the appeal: the Appellants' submissions filed on 19 August 2025; the Respondent's submissions filed on 11 September 2025; submissions in reply of the Appellants filed on 17 September 2025; and a bundle of legislation, authorities and secondary materials relied on by the Appellants; and a joint Appeal Book filed on 17 September 2025 containing the material which was before the Tribunal at first instance.

The Reasons for the Tribunal's Decision of 29 May 2025

1. Although the Tribunal's ultimate findings are controversial, the findings of primary fact upon which the Tribunal relied are either not disputed or, being based on the records of the Respondent, capable of being seriously in dispute. It is appropriate to refer to the Tribunal's reasons in some detail, as background to the appeal, as the factual underpinning of the proceedings and legal issues arising from those facts are not without complexity.
2. The Tribunal recorded [1] that the Appellants are the registered proprietors of Lots 1 and 22 in Strata Plan 2404. Lot 1 is a residential unit. Lot 22 is a single garage. The Appellants have owned both Lots since September 2016. At that time, Lot 1 also had exclusive use of car space number 9 (car space 9) pursuant to by-law 28 of the Respondent's by-laws (by-law 28). The proceedings are about the right to exclusive use of car space 9.
3. The Tribunal recorded [2] that, prior to 12 December 2013, pursuant to by-law 28, the owner of Lot 11 had exclusive use of car space 9, and the owner of Lot 2 had exclusive use of car space 13. A general meeting of the Respondent on 12 December 2013 resolved to amend by-law 28. By-law 28 was registered at the NSW Land Registry on 21 February 2014, as dealing A1383455N, and recorded the owner of Lot 1 as having exclusive use of car space 9. The owner of Lot 11 was recorded as having exclusive use of car space 13. The owner of Lot 2 was the only owner who did not have exclusive use of a car space on the common property pursuant to the amendment of the Respondent's by-laws.
4. The Tribunal recorded [3] the Respondent's assertion that dealing A1383455N contained an error, and that the exclusive use of car space 9 should have been granted to the owner of Lot 2, and not the owner of Lot 1. The Tribunal recorded [4] the Respondent's contention that the asserted error was repeated in dealing AJ643314, registered on 10 July 2015, but corrected by dealing AM806083 registered on 17 December 2017, which granted the owner of Lot 2 exclusive use of car space 9. The Respondent asserted that the error recurred with the registration of dealing AN81818 on 29 October 2018 when the owner of Lot 1 was recorded as having exclusive use of car space 9.
5. On 5 December 2023 [5] the Respondent resolved to amend by-law 28 to give Lot 2 the exclusive use of car space number 9. Dealing AT690671, registered on 13 December 2023, gave effect to that amendment. The Tribunal recorded [6] the Respondent's contention that the 5 December 2023 resolution was passed pursuant to sections 141 and 143 of the Strata Schemes Management Act 2015 (the SSMA). The amended by-law was incorporated in the Respondent's consolidated by-laws.
6. The Tribunal recorded [7] the Appellants' contention that the 5 December 2023 resolution was passed without their written consent and was thus invalid, or should not have been made, having regard to the interests of all Lot owners' use and enjoyment of their Lots. The Appellants sought an order revoking the resolution and the reinstatement of by-law 28 to the version which the Respondent passed on 12 December 2013.
7. The Tribunal recorded that the Appellants relied on sections 141(5), 148 and 229 of the SSMA in support of their claim. Although the Appeal Panel will engage in detail with them, it is convenient to record the terms of the provisions in their entirety at this point.
8. Section 141 of the SSMA, which is concerned with "changes to and consolidation of by-laws" provides that:

"(1) An owners corporation may, by special resolution, change the by-laws for the strata scheme.

Note -

If the special resolution is a sustainability infrastructure resolution, fewer votes are needed to pass it. See section 5(1)(b).

(2) The change to the by-laws has no effect until -

(a) the owners corporation lodges a notice, in the approved form, with the Registrar General, and

(b) the Registrar General makes an appropriate recording of the notice in the folio of the Register for the common property for the scheme.

(3) The owners corporation must lodge the notice within 6 months of the day the special resolution is passed.

(4) An owners corporation may, by special resolution, consolidate the by-laws for the scheme, whether or not a by-law is amended, repealed or added.

(5) The written consent of the owners on whom a common property rights by-law confers rights or special privileges is not required to consolidate the by-laws for the scheme, if the consolidation does not involve the amendment, repeal or addition of a common property rights by-law.

(6) The secretary of the owners corporation must keep a consolidated up to date copy of the by-laws for the scheme."

1. Section 143 of the SSMA is concerned with "requirements and effect of common property rights by-laws" and provides:

"(1) An owners corporation may make a common property rights by-law only with the written consent of each owner on whom the by-law confers rights or special privileges.

Note.

Any addition to the by-laws will require a special resolution (see section 141).

(2) A common property rights by-law may confer rights or special privileges subject to conditions specified in the by-law (such as a condition requiring the payment of money by the owner or owners concerned, at specified times or as determined by the owners corporation).

(3) A common property rights by-law may be made even though the person on whom the right of exclusive use and enjoyment or the special privileges are to be conferred had that exclusive use or enjoyed those special privileges before the making of the by-law.

(4) After 2 years from the making, or purported making, of a common property rights by-law, it is conclusively presumed that all conditions and preliminary steps precedent to the making of the by-laws were complied with and performed."

1. Section 148 of the SSMA is concerned with "order revoking amendment of by-law or reviving repealed by-law" and provides:

"(1) The Tribunal may, on application by a person entitled to vote on the amendment or repeal of a by-law or addition of a new by-law or the lessor of a leasehold strata scheme, make one of the following orders-

(a) an order that the amendment be revoked,

(b) an order that the repealed by-law be revived,

(c) an order that the additional by-law be repealed.

(2) The Tribunal may make an order only if the Tribunal considers that, having regard to the interests of all owners of lots in a strata scheme in the use and enjoyment of their lots or the common property, the change to the by-laws should not have been made by the owners corporation.

(3) An order under this section, when recorded under section 246, has effect as if its terms were a by-law (but subject to any relevant order made by a superior court).

(4) When making an order under this section in relation to a common property rights by-law, the Tribunal may direct the payment by the owners corporation of compensation to the owner of the lot, or owners of the lots, referred to in the by-law.

Note.

Section 78 of the Civil and Administrative Tribunal Act 2013 provides for the recovery as a judgment debt of amounts ordered to be paid by the Tribunal.

(5) An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order."

1. Section 229 of the SSMA is concerned with "general order making power of Tribunal" and provides that:

"The Tribunal may, in any proceedings before it under this Act, make any one or more of the following orders or other decisions-

(a) an order or decision that provides for any ancillary or consequential matter the Tribunal thinks appropriate;

(b) an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013."

1. The Tribunal concisely and comprehensively recorded the background to the proceedings. Rather than unhelpfully summarise those findings ([13]-[63]), it is appropriate to set out in full that background. The Tribunal recorded relevantly:

"13 The Strata Plan was registered on 30 September 1966. It is a residential strata scheme comprising 22 lots and common property at Waverley, New South Wales. Lots 1 to 18 are residential lots, and lots 19 to 22 are car garages.

14 Four residential lot owners also own garage lots. The owner of Lot 4 owns garage Lot 19, the owner of Lot 13 owns garage Lot 20, the owner of Lot 17 owns garage Lot 21, and the (Appellants) own garage Lot 22.

15 On 5 August 1981, the respondent resolved to make by-law 28, granting owners of various lots the exclusive use of a number of car spaces.

16 On 13 November 1981, Change of By-Law S781286 signed by Peter Wills under the respondent's seal was registered. It records the addition of by-law 28, with car spaces being allocated as described below and designated by the car space number in the plan annexed and forming part of the by-law."

A table followed identifying the Lots in the Strata Plan and the car space numbers which they were entitled to use. The table did not include the Appellants' Lot, 1, as having an entitlement to a car space.

"18 For the next 32 years, the owners of Lots 2 and 11 continued to have exclusive use rights over car spaces 13 and 9 respectively. That changed in 2013 and there then followed events that ultimately led to these proceedings.

19 At a general meeting held on 12 December 2013, the respondent passed a resolution (2013 resolution). The minutes of the meeting record the following resolution:

"It was resolved that the Owners Corporation accept the By-law for the allocation of car spaces.

Voting: 6 in Favour Nil against"

20 The minutes also record that Ms Jenny Morrissey (Ms Morrissey) the strata manager, held 6 proxies, including one for "G Kelly (Lot 2)". No proxy was recorded in the minutes as being held on behalf of the owner of Lot 1, and the owner of Lot 1 was not recorded as having attended the meeting. A copy of the by-law is not recorded as attached to the minutes.

21 Change of by-law A1383455 signed by Ms Morrissey under the respondent's seal was registered on 21 February 2014 (2014 dealing). The dealing records that the respondent certifies that pursuant to a resolution passed on 12 December 2013, by-law 28 is amended as set out in the dealing. The dealing read as follows:

The proprietors in the first column of the schedule hereunder shall be entitled to the exclusive use and enjoyment of the at part of the [sic] common property referred to in the second column of hte [sic] said schedule and designated by the car space number in the plan annexed to dealing number S781286 and forming part of this by-law."

There followed a table reflecting that the owner of Lot 1 was entitled to exclusive use of car space number 9.

"22 S781286 is the dealing, and the plan annexed to it has "Space 9" printed where car space 9 is designated.

23 By notice dated 25 March 2015, the respondent gave notice of a general meeting to be held on 13 April 2015. Item 2 of the notice reads as follows:

"EXCLUSIVE USE

That the proprietors in the First Column of the Schedule hereunder shall be entitled to the exclusive use and enjoyment of the part of the common proeprty [sic] referred to in the Second Column of the said Schedule and designed by the car space number in the Plan annexed to Dealing No. S781286 and forming part of this by-law and attached. In all other respects by-law 28 is confirmed."

24 The words "Adjourned Meeting" are handwritten on the notice in evidence. There is no plan [sic] is annexed to the notice and no indication of what changes made to by-law 28 are proposed.

25 The minutes of the meeting held on 13 April 2015 relevantly record the following:

"EXCLUSIVE USE

Resolve that the proprietors in the First Column of the Schedule hereunder shall be entitled to the exclusive use and enjoyment of the part of the proeprty [sic] referred to in the Second Column of the said Schedule and designated by the car space number in the Plan annexed to Dealing No. S781286 and forming part of this By-Law and attached. In all other respects by-law 28 is confirmed."

26 The minutes also record that only Ms Morrissey was in attendance, she chaired the meeting, that she held four proxies, and the voting on the resolution was three in favour and one abstention.

27 The minutes do not specifically identify the changes to by-law 28. The applicants say that the change involved swapping car spaces between Lot 6 and Lot 10. This is reflected in the Change of By-law AJ643314 registered on 10 July 2015. The dealing is signed by Ms Morrissey under the respondent's seal and said to be made pursuant to a resolution passed on 13 April 2015, with car spaces being allocated as described in the schedule and designated by the car space number in the plan annexed to dealing No. S782268. The schedule records the swap of car spaces for the owners of lot 6 and lot 10. It also records the owner of lot 1 as having the exclusive use of car space 9. The plan annexed to the by-law has the handwritten figure 2 in a circle in the area marked "space 9".

28 On 17 October 2016 the applicants entered into a contract to purchase Lot 1 and Lot 22. Three days earlier, the second applicant's brother, Mr Natt Armstrong of Pure Strata Reports, undertook a pre-purchase inspection of the respondent's records.

29 The respondents' strata roll records show that Lots 1 and 22 were transferred to the applicants on 5 December 2016. The applicants did not immediately move into Lot 1. Instead, they rented the unit. The tenant did not use car space 9.

30 The minutes of an extraordinary general meeting of the respondent held on 20 September 2017 relevantly record that it was resolved that the respondent prepare and register a consolidated set of by-laws. The Consolidation Change of By-laws signed by Ms Morrissey under the respondent's seal was registered as dealing AM806083 on 17 October 2017. On the cover form, the dealing identifies 4 new special by-laws but no amended by-laws.

32 By-law 28 in the consolidated by-laws reads: The Proprietors in the First Column of the Schedule hereunder shall be entitled to the exclusive use and enjoyment of the part of the common property referred to in the annexed to dealing No. S781286 and forming part of this by-law.

33 The word "plan" appears to be missing after "the" in the third line.

34 Below these words are two columns under the headings "Lot in Strata Plan" and "Car Space Number". Car space 9 is recorded as being allocated to Lot 2. The plan from dealing S782286 is annexed. A handwritten figure 2 in a circle appears in the area marked "Space 9".

35 On 5 December 2017, the second applicant send an email to Ms Morrissey containing a document, which is not identified but is said to show the applicants are allocated a car space and asking what the best way is to enforce the by-law. Ms Morrissey responded saying: "The original dealing was incorrect and we amended the dealing. You have a garage - no one at the property that has a garage has a car space as well".

36 On 5 March 2018, JS Mueller & Co (Mueller) provided a letter of advice to the respondent on whether the owner of Lot 1 has exclusive use and enjoyment of car space 9 pursuant to by-law 28. They concluded the owners of Lot 1 are entitled to the exclusive use and enjoyment of car space 9 under the by-law.

37 Also, on 5 March 2018, Ms Morrissey sent an email to the owner of Lot 2 advising that car space 9 belongs to Lot 1 and that a strata lawyer had checked this information and confirmed that Lot 1 owns the car space and not lot 2.

38 Mueller provided the respondent with another letter of advice on 30 April 2018. Based on additional information they say they received, Mueller advised that the owner of Lot 2 is entitled to exclusive use and enjoyment of car space 9 pursuant to by-law 28.

39 Consolidation Change of By-laws prepared by Mueller is registered on 29 October 2018 as dealing AN811818. It is said to be made pursuant to a resolution of the respondent passed on 31 August 2018. The dealing cover form records 3 new by-laws, 7, 8 and 9 but no amended by-laws. The text of the by-law repeats the mistake in the text of the by-law in AM806083, with the word "plan" missing from the third line. Below the text are two columns under the headings "Lot in Strata Plan" and "Car Space Number". This time, car space 9 is recorded as belonging to Lot 1. The plan from dealing S782286 is annexed. A handwritten figure in a circle appears in the area marked space 9.

40 According to the date recorded on the respondent's Strata roll, Lot 2 was transferred to Alex Koerber (Mr Koerber) and Ms Emily Jean I Thomson-Vock (Ms Thomson-Vock) on 22 November 2018. On 29 August 2019, Ms Morrissey writes to the applicants seeking their consent to amend by-law 28 to correct what was said to be an error in that by-law to give the owners of Lot 2 exclusive use of car space 9. Ms Morrissey says the amendment to by-law 28, cannot be made without the applicants' written consent, and she seeks that they sign and return a written consent form enclosed. If the applicants withhold their written consent, Ms Morrissey said the respondent can apply to the Tribunal for an order to permit the by-law to be amended.

42 On the same day, and in a separate letter, Ms Morrissey sent the applicants an agenda for an annual general meeting to be held on 16 September 2019 and the consent form for the applicants to sign and return before or at the meeting.

43 There are no minutes of the meeting held on 16 September 2019 and there is no evidence that it was held. It seems probable that the meeting was postponed to 29 October 2019.

44 Consolidated Change of By-Laws prepared by Mueller for the respondent was registered as dealing AP779810 on 13 December 2019. The dealing, which is signed by Ms Morrissey on behalf of the respondent, is said to be made pursuant to a resolution passed on 29 October 2019. The dealing cover form identifies a new special by-law 10 for renovation that was added but no amended by-law. The schedule to by-law 28 in the consolidated by-laws records Lot 1 as having exclusive use of car space 9. The plan from dealing S781286 annexed to the by-law has the handwritten figure 2 in a circle in the area marked "space 9".

45 The first applicant exchanged emails with Ms Morrissey on 18 and again on 19 February 2020.

46 The first applicant informed Ms Morrissey "that we will need to use the allocated car space and would like to ensure that it is empty". Ms Morrissey replied that "we are preparing documents for NCAT to review the by-law". The first applicant responded that he "will continue to occupy its use as expected".

47 In March 2020, the respondent commenced proceedings against the applicants in the Tribunal seeking an order pursuant to s 149 of the Act for by-law 28 to be amended by replacing Lot 1 with Lot 2 to give the latter exclusive use of car space 9. The owners of Lot 2, Mr Koerber and Ms Thomson-Vock, are named the application as persons who may be affected if the Tribunal makes the orders sought.

48 In a letter of advice from Pobi Lawyers (Pobi) dated 16 June 2020, the respondent is advised to withdraw the proceedings in the Tribunal because "they are doomed to fail". Pobi advised that Lot 1 was entitled to exclusive use of car space 9 when the applicants purchased that Lot, and the Lot 2 owner was on notice when that lot was purchased in November 2018 that the car space was allocated to Lot 1.

49 There is a second letter of advice provided by Pobi Lawyers to the respondent. It is also dated 16 June 2020, but the date may be a mistake. Pobi says they were asked to investigate in more detail the chronology of when the strata manager registered by-laws and advise about this in the context of the information available to the current owners of Lot 2 when they exchanged contracts. Pobi advised that they were unable to say with certainty who between lot 1 and Lot 2 has a stronger entitlement to the car space. Pobi still recommended that the respondent withdraw the Tribunal proceedings.

50 The respondent's strata committee met on 9 February 2021. Relevantly, the minutes of that meeting note "that no further action was being taken by the Owners Corporation in relation to the dispute concerning by-law 28 and the use of car space no. 9 at this stage".

51 On 10 March 2021, Morrisey Law and Advisory, acting for Mr Koerber and Ms Thomson-Vock, wrote to Advanced Community Management Pty Limited, now the respondent's strata manager. They said that while there is difficulty in interpreting by-law 28, the extrinsic and surrounding circumstances make it clear that the by-law was intended to give Lot 2 exclusive use of car space 9. They request a notice under s146 of the Act be served on the applicants requiring compliance with their interpretation, and alternatively request that the by-law be changed pursuant to s141(1) of the Act to make clear that Lot 2 is entitled to exclusive use of car space 9.

52 The respondent's strata committee met on 27 April 2021. The minutes record that an agenda item was that the committee determine any action to be taken about the letter from Morrisey Law and Advisory. The minutes also record that the committee considered the letter and declined a request that a number under s146 of the Act be served on the owners of Lot 1, and also the request that the by-law be changed pursuant to s141(1) of the Act to make it clear that lot 2 is entitled exclusive use of car space 9. Also noted in the minutes is that at the annual general meeting, the respondent resolved not to commence action in relation to the matter unless Lot 1 or Lot 2 takes legal action against the respondent.

53 An extraordinary general meeting of the respondent was held on 19 July 2023. The minutes record that it was resolved that the respondent make an application to the Registrar General to amend or replace by-law 28 "so as to rectify any error in that by-law, namely that it incorrectly records that the owner of Lot 1 has the right to exclusive use and enjoyment of common property car space number 9, so that by-law 28 correctly records that the owner of Lot 2 has the right to the exclusive use and enjoyment of common property car space number 9".

54 The minutes also record that voting was by unit entitlement, and 110 units were in favour of the resolution, 15 against the resolution and 23 abstained. According to the minutes, 8 lot owners attended the meeting, and 2 additional lot owners provided pre-meeting votes.

55 Dealing AR492106, a Request, was lodged on 6 October 2021 by Morrisey Law and Advisory on behalf of Mr Koerber and Ms Thomson-Vock with NSW Land Registry. They requested that the Registrar General correct by-law 28. The Registrar General rejected the request.

56 The second respondent [clearly intended to mean applicant] says that sometime in October 2023, she received a letter under her door from the respondent. The letter read as follows:

"Hi Unit Owner of SP2104 given you have an exclusive use of car space in the building of 4 Macpherson Street Waverley, this form is required to be signed to provide your consent for the solicitor to lodge an updated by-law that clearly states that the Owners Corporation maintains the floor slab below your car space. The by-law currently doesn't stipulate this and therefore does not comply with the requirements. Please return your signed form to Justin.mellars@bright-duggan.com.au at your earliest convenience - Thank you."

57 The form referred to in the letter read as follows:

"Consent to Common Property Rights and Special Privilege By-Law

2: The Secretary

The Owners - Strata Plan No 2404 I/we ......., being the registered proprietor of lot [ ] in Strata Plan No. 2404, HEREBY CONSENT to the amendment of by-law 28 which confers common property rights and a special privilege upon the owners from time to time of our lot if the amended by-law is made by the Owners Corporation at a general meeting.

SIGNATURE OF OWNER"

58 The respondent received 14 forms bearing various dates from October to November 2023, signed by persons identified as the registered proprietor of a lot in strata plan.

59 A new strata manager, Justin Mellors from Bright & Duggan, issued a notice of extraordinary general meeting of the respondent to be held on 5 December 2023. Item 2 of the notice is a motion to amend by-law 28 pursuant to sections 141 and 143 of the Act by designating Lot 2 as having exclusive use of car space 9. Handwritten on an area of the plan for car space 9 attached to the notice is "Space 9 Lot 2".

60 The minutes of the meeting on 5 December 2023 record that the motion to amend by-law 28 was carried. There is no plan attached to those minutes in evidence. The minutes also record that by unit entitlement, 110 units were for the motion and 15 against. The applicants' evidence is that they did not consent to the motion.

61 By-law 28 as recorded in Consolidation/Change of By-laws dealing AT690671 registered on 13 December 2023 (2023 dealing) is said to have been made pursuant to the 2023 resolution, which relevantly read as follows: "The Proprietors in the First Column of the Schedule hereunder shall be entitled to the exclusive use and enjoyment of the part of the common property referred to in the second column of the said Schedule and designed by the car space number in the plan annexed to this dealing and forming part of this by-law." The schedule recorded against Lot 2 in the strata plan car space 9. No car space was recorded against Lot 1.

62 "Lot 2" is handwritten in the space specified as car space 9 in the plan annexed to dealing AT690671.

63 On 29 April 2024, the applicants wrote to the strata management requesting that their email containing a suggested way to accommodate a resolution of the dispute by creating two car spaces on the left hand side of the building into three car spaces and to use the additional space under exclusive by-law instead of car space 9. The minutes of a meeting of the respondent's strata committee held on 18 September 2024 record the defeat of the resolution for the strata committee "to reallocate common property on the left side of the building to car spaces to assist in the resolution of the exclusive use by-law concerned"."

1. The Tribunal referred [66] to the evidence of the First Appellant that when the Appellants contracted to purchase Lot 1 and Lot 22 on 17 October 2016, a "car space was marked as an improvement in the contract and that he and the second applicant understood that car space 9 would be their car space to exclusively use in accordance with by-law 28". The Tribunal accepted the First Appellant's "unchallenged evidence".
2. The Tribunal referred [67] to the Affidavit evidence of the Second Appellant that when she and the First Appellant purchased their Lots in 2016 "they obtained advice from their solicitor regarding car space 9. Their solicitor advised that the car space was part of their contract".
3. The Tribunal referred [68] to a letter relied upon by the Appellants from their solicitor, Mr Moustacas, dated 25 March 2020 in which, in summary, he said that "He met with the applicants, that exclusive use of a car space 9 was included in the Contract for Sale, it being marked on the front page of the Contract, the space was allocated for exclusive use in a registered by-law to the Lot applicants were purchasing and there was no special condition in the Contract to say the registered by-law was in error or needed to be corrected".
4. The Tribunal referred [70] to the evidence of the Second Appellant that Lot 2 "is leased out and the tenant does not have a car and is not using car space 9". The Tribunal referred [71] to evidence relied upon by the Appellants that they "own two cars, a scooter and a motorbike, and all require suitable car spaces for parking". The Tribunal recorded the evidence of the First Appellant that "The car space was one of the primary reasons they purchased the Lot, as both the garage included in the purchase and the additional car space meant they had adequate parking available". The Tribunal accepted [72] the Second Appellant's unchallenged evidence, and recorded [73], accurately, that the Respondent did not adduce any evidence at the hearing, other than the documents to which the Tribunal referred in the background.
5. The Tribunal recorded [76] the submissions in chief of the Appellants, [77] the submissions on behalf of the Respondent and [78] the submissions of the Appellants in reply. As, albeit in the present appellate context, those submissions are reiterated in the parties' submissions in the present proceedings, it is unnecessary to refer to them in detail at this point.
6. Under the heading "issues", the Tribunal summarised the issues for determination in the proceedings in the following terms:

"(1) Was the Respondent required to obtain the Applicants' written consent to the 2023 resolution?

(2) Alternatively, should the Tribunal make an order under s148(1)(c) of the Act repealing the amendment made to by-law 28 by the 2023 resolution?

(3) If the answer to either or both of the preceding questions is yes, what orders should be made as a consequence by the Tribunal."

1. The Tribunal then proceeded to consider those issues, first turning its attention to whether the Respondent was required to obtain the Applicants' written consent to the 2023 resolution. The Tribunal referred [81] to the submission on behalf of the Respondent that the definition of "Change" in s133, and s143(1) of the SSMA when read together means that an existing by-law can be changed, amended or repealed without the written consent of the person whose benefit under the by-law is to be removed. The Tribunal rejected that submission and held that:

"Section 143 says nothing about changes or amendments to or repealing by-laws. In my view, "an owners corporation may make a common property rights by-law only with the written consent of each owner on whom the by-law confers rights or special privileges" found in s143(1), refers only to making a new by-law. In this regard, I respectfully agree with the Member who said this in Wichai at [21]:

"Section 143 refers to "make" a by-law and not "change". There is no definition of "make" as there is with "change". I accept the Owners Corporation's submission that "make" does not include "repeal" the legislature intended for s143 not to cover the act of repealing a by-law, otherwise it would have used the word "repeal" or at least used the broader term of "change". The facts that the words "amend or repeal" have been removed from the equivalent section in the 1996 Act (which was s52(1)) lent support to interpret s143 of the 2015 Act to mean that "make" does not include "repeal".""

1. The Tribunal referred [83] to the finding in Wichai that the "Owners Corporation was not required under s141(1) to obtain the consent of (the lot owner) to the repeal of the special by-law". The Tribunal referred [84] to the observation in Wichai at [26] that "If the legislature intended for consent to be obtained from a lot owner to amend or repeal a common property rights by-law, s141 or 143 would have specifically allowed for it". The Tribunal recorded [85] the contention of the Applicants' solicitor that the decision in Wichai was "incorrect because it failed to consider the wording of s141(5), which they say explicitly refers to a requirement to obtain consent".
2. The Tribunal observed [86] that when the decision in Wichai was published, in November 2019, s 141(5) of the SSMA "did not exist". The Tribunal's "own research" was stated to have revealed that s 141 of the SSMA was repealed by the Strata Legislation Amendment Act 2023 Number 23 which was assented to on 11 December 2023, those amendments introducing a new s 141 which contained the current s 141(5). The Tribunal recorded the terms of s141(5):

"The written consent of the owners on whom a common property rights by-law confers rights or special privileges is not required to consolidate the by-laws for the scheme, if the consolidation does not involve the amendment, repeal or addition of a common property rights by-law."

1. The Tribunal held [87] that when the 2023 resolution was passed on 5 December 2023, s 141(5) had not come into force, and did not do so until 6 days later. The Tribunal thus held that, by its terms as at 5 December 2023, s 141 did not require the Respondent to obtain the written consent of the Appellants to amend by-law 28 as part of the consolidation of by-laws, which the Tribunal held the 2023 dealing did, to provide the owner of Lot 2 with exclusive use of car space 9. The Tribunal thus held at [88] that the Respondent was not required to obtain the Applicants' written consent to the 2023 resolution.
2. The Tribunal then considered the second issue identified at [79(2)], which was whether the Tribunal should exercise its discretion under s 148 of the Act and revoke the amendment made to by-law 28 by the 2023 resolution. The Tribunal reiterated [90] the terms of s 148.
3. The Tribunal recorded [91] that it was not in dispute that the Appellants had standing to apply for an order under s 148(1) of the SSMA. The Tribunal further recorded [92] that the power to make an order under s 148(1) is discretionary. The Tribunal recorded [93] the Respondent's contention that the Appellants, as the Applicants, bore the onus of satisfying the Tribunal that it was in the interests of all lot owners' use and enjoyment of their lots or common property that the amendment to by-law 28 should not have been made. The Tribunal accepted that contention.
4. The Tribunal identified the matters which each party submitted should be taken into account in exercising the Tribunal's discretion whether to make an order under s 148(1)(c) of the SSMA. The Tribunal recorded the matters relied upon by the Appellants in the following terms [95]:

"(1) Other than the Mueller letter dated 30 April 2018, which refers to but does not include the notice of the extraordinary general meeting held on 12 December 2013, there is no evidence to support the assertion that the intention at that meeting was for the Lot 2 owner to be granted exclusive use of car space 9.

(2) The schedule to the 2023 dealing specifies that Lot 1 has exclusive use over car space 9.

(3) For the 2023 resolution, the Respondent did not obtain consent from affected lot owners to all amendments to by-law 28. The consent form signed by lot owners before passing the 2023 resolution said nothing about removing the Applicants' exclusive use of car space 9, and there is no evidence that the by-law was ever show to lot owners before signing the consent forms.

(4) The wording of by-law 28 as recorded in the 2023 dealing differs from that of the by-law wording approved by the 2023 resolution.

(5) Car space 9 was an important factor influencing their decision to purchase Lot 1 and Lot 22."

1. The Tribunal summarised the matters relied upon by the Respondent in the following terms:

"(1) The applicants have solely addressed their interests and not the interests of all owners in relation to the amendments made to by-law 28.

(2) The applicants have not address the difference in the by-law 28 wording in the April 2015 and September 2017 dealings which refer to lot 1 as having exclusive use of car space 9 and the plan annexed to both which designates lot 2 in the space.

(3) It is not in the interests of all owners in the use and enjoyment of lots and common property that all owners accept the owner of lot 2 have a parking space while the Applicants have both a garage and a parking space.

(4) By-law 28 grants to the 14 owners who do not have a garage on title, the right to park a car in a common property parking space.

(5) The history of the matter discloses a clear intention on the part of the respondents in 5 August 1981 to make a by-law that would give all owners who did not own a garage a place to park a motor vehicle.

(6) A resolution to grant the owner of lot 2 exclusive use of a parking space under by-law 28 was expressed at general meetings held on 5 August 1981, 12 December 2013, 13 April 2015 and 5 December 2013.

(7) No resolution was ever passed at the respondent's special meeting granting the owners of lot 1 exclusive use of a common property parking space.

(8) There were errors by the strata manager when the owner of lot 1 was recorded as the owner of car space 9 by amendments to by-law 28 on 21 February 2014 and 10 July 2015. The error was corrected on 20 September 2017 with the dealing registered on 17 October 2017 correctly referring to the owner of Lot 2 as having exclusive use of car space 9.

(9) A further error occurred on 29 October 2018 with the registration of consolidated by-laws prepared by Mueller, which correctly recorded the grant of exclusive use of car space 9 to the owners of lot 1."

1. The Tribunal was not persuaded [97] that it was in the interests of all lot owners to make an order under s 148(1)(c) and repeal by-law 28 and reinstate the by-law to the version that was passed by the 2013 resolution. The Tribunal's reasons for that decision recorded:

"(1) I am comfortably satisfied that each resolution passed on 12 December 2013, 13 April 2015 and 14 September 2017, although not drafted with perfect clarity, intended to grant the owners of lot 2 exclusive use of car space 9. I have arrived at this conclusion for several reasons.

(a) First, the 1981 resolution and dealing S781286 granted the owners of various lots who did not own a garage the exclusive use of a car space on common property, and that position remained for over 30 years.

(b) Second, the plans attached to the dealings that were lodged after the 13 April 2015 and 14 September 2017 resolutions, each designated by the use of the number 2 in the plan of car space 9, that the owner of lot 2 had exclusive use of that space.

(c) Third, neither the applicants in their affidavit evidence nor their solicitor, nor Mr Moustacas, in his 25 March 2020 letter, sought to reconcile the wording in the dealing annexed to the contract for sale with the marking of lot 2 on car space 9 in the plan annexed.

(d) Fourth, while I do not consider the Crime Commission caveat being included in the contract for sale by which the applicants acquired lot 1 and Lot 2 to be a basis for triggering further enquiry about car space 9, the inclusion of the number 2 in the plan of the car space annexed to the contract ought to have triggered an enquiry about the status of the exclusive use rights for that space. Both the applicants and their evidence and Mr Moustacas in his letter remain silent about that.

(e) Fifth, nowhere in any of the contemporaneous documents, including notices and minutes of meetings, is it stated or recorded that the owner of lot 1 is to have exclusive use and enjoyment of car space 9.

(2) There is some force in the submission made on behalf of the applicants that the written consents given by the lot owners ahead of the 5 December 2023 say nothing about exclusive use of car space 9 and the wording of by-law 28 differs from that of the by-law approved by the 2023 resolution, the minutes of the 5 December 2023. However, I do not consider that to be fatal to the resolution passed on that date, which was intended to remedy, for the fourth time, the same error that had occurred in recording the owner or owners of lot 1 as the owner of car space 9. The minutes of that meeting make it clear that lot 2 was to have exclusive use of car space 9.

(3) What transpired as a consequence of inadvertence or negligence on the part of the strata manager and the respondent's former solicitor on at least four occasion, by my count, was that the registered dealings erroneously recorded lot 1 as having exclusive use of car space 9. The question that arises is whether this should be allowed to stand.

(4) I accept that one of the significant factors influencing the applicants' purchase of Lot 1 and Lot 2 was having exclusive use and enjoyment of car space 9. However, while reversing the 2023 resolution would be in their interests, the Tribunal is required by s148(2) to have regard to the interests of all owners of lots in the strata scheme in the use and enjoyment of their lots or the common property.

(5) It is, in my view, in the interests of all owners in the strata scheme for the errors that have occurred on three occasions by granting lot 1 exclusive use of car space 9 to be corrected, and for each lot owner to have a parking space either in a garage lot or a designated space on the common property in respect of which an owner has exclusive use."

1. The Tribunal accordingly [98] held that it should not make an order under s 148(1)(c) of the SSMA repealing the amendment made to by-law 28 by the December 2023 resolution. In view of the Tribunal's determination of the first two issues, it was unnecessary to consider the third issue. The Applicants' application was thus dismissed.

1. The principles governing the appeal are not in doubt or in dispute, and require only brief reiteration.
2. The Appellant appeals as of right on a question of law (CAT Act s 80(2)(b)). In Micallef v ICI Operations Australia Pty Ltd [2001] NSWCA 274 questions of law were identified as including errors of legal principle, decisions based on material errors of fact, decisions made after taking irrelevant matters into account, or failing to take relevant matters into account, and arriving at a result which was so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, although the error in question did not explicitly appear on the face of the record. Findings of fact not made in reliance on credit may are erroneous if shown to have been "plainly wrong" (Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54).
3. Other questions of law include actual or apprehended bias (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63), failing to adequately expose the process of reasoning which led to the decision and/or constructive failure to exercise jurisdiction (Resource Pacific Pty Limited v Wilkinson [2013] NSWCA 33), failing to respond to a substantial, clearly articulated argument relying on established facts (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26) and denying a party procedural fairness or natural justice in circumstances where the same result would not be inevitable if the appeal were allowed and a new hearing ordered (Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54).
4. Although the Respondent contends that the Appellants' grounds of appeal lack merit, it has not been suggested that the grounds do not raise asserted errors on questions of law.
5. The Appellants were obliged to identify with precisions the questions of law said to be raised by the appeal (Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; Schwartz Family Co Pty Limited v Capital Carpets Pty Limited [2017] NSWCA 223). The Appellants have clearly identified the questions of law on which they rely.
6. The Appellants conceded that their second ground of appeal may involve mixed questions of fact and law and submitted that, to the extent that leave may be required, leave should be granted. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel considered the principles applicable to an application for leave to appeal from a decision of the Consumer and Commercial Division of the Tribunal pursuant to clause 12(1) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). The Appeal Panel recorded at [66] that the discretion to grant leave is only enlivened if the parties establish that:

"The appellant may have suffered a substantial miscarriage of justice because:

(a) the decision of the Tribunal under appeal was not fair and equitable, or

(b) the decision of the Tribunal under appeal was against the weight of evidence, or

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)."

1. The Appeal Panel recorded at [82] that the principles governing the grant of leave to appeal by the Appeal Panel pursuant to s 80(2)(b) of the CAT Act should generally be consistent with those applied by courts when considering questions of leave to appeal. By reference to the authorities which it reviewed, the Appeal Panel said at [84] that the general principles could be summarised as:

"(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact (BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at 45;

(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."

1. In view of the complexity of some of the issues raised in the appeal, and having regard to the comprehensive and carefully articulated submissions of the parties, it is necessary to refer in detail to the parties' submissions as they have been advanced, rather than attempt to paraphrase them.

1. The Appellants assert that the Respondent was required to obtain their written consent to the 2023 resolution before it could be validly passed. Such consent was not obtained. The Appellants relied on what were asserted to, and were accepted as uncontroversial principles of statutory interpretation:

(a) a starting point for the ascertainment of the meaning of a statutory provision is its text, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14];

(b) a provision of an Act is not to be read in isolation but must be read and understood within the context of the entire Act, and is to be construed in a manner that best gives effect to its purpose and language while maintaining the unity of the statutory scheme: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, at [68]-[70];

(c) all words must prima facie be given some meaning and effect, so that no clause, sentence, or words shall prove superfluous, void or insignificant if, by any other construction, they may all be made useful and pertinent: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71].

1. The Appellants acknowledged that the Tribunal's decision that the consent of the applicants was required was made after identifying most of the relevant provisions of the SSMA - ss 141, 143, 148 and 229. The Appellants submitted that the Tribunal's reasoning process "appears to have been that s 143 only requires consent to make a common property rights by-law and says nothing about changing any existing common property rights by-law". In reaching that decision the Tribunal was submitted to have erred by failing to have "due (or any) regard to the operation of sections 133, 142 and 149 of the SSMA". The Appellants referred, with emphasis, to s 142 of the SSMA which provides:

"For the purposes of this Act, a common property rights by-law is a by-law that confers on the owner or owners of a specific lot or lots in the strata scheme -

(a) a right of exclusive use and enjoyment of the whole or any specified part of the common property or

(b) special privileges in respect of the whole or any specified part of the common property (including, for example, a licence to use the whole or any specified part of the common property in a particular manner or for particular purposes),

or changes such a by-law."

1. The effect of the provision was submitted to be that "a change to a common property rights by-law is considered to itself be a common property rights by-law." In turn, s 133 of the SSMA stipulates that the term change in this part of the Act means "amend or repeal the by-laws or add to the by-laws".
2. The Appellants referred to s 143(1) of the SSMA, which provides that "An owners corporation may make a common property rights by-law only with the written consent of each owner on whom the by-law confers rights or special privileges". It was accordingly submitted that "When s 143 is read by reference to sections 131 and 142 of the SSMA, it is clear that "the making of a common property rights by-law" includes a change to an existing common property rights by-law". It is reasonably apparent that the reference to s 131 is intended to be a reference to s 133. The construction of the legislation advanced by the Appellants was submitted to be "consistent" with the decision of the Appeal Panel in GS & CS Holdings Pty Ltd v The Owners - Strata Plan No. 63227 [2022] NSWCATAP 206 at [27]- [28] where it was held that:

"A common property rights by-law is a by-law conferring a right of exclusive use and enjoyment or special privileges in respect of the whole or a specified part of common property. It includes changes to such a by-law: s142. Change to a by-law means "amend or repeal" of a by-law as well as addition of a by-law: s133 definitions.

Consequently, a by-law that amends an existing by-law is a common property rights by-law to which s143 applies."

1. In those circumstances the written consent of each owner on whom the by-law confers rights or special privileges was submitted to be required in order to change an existing common property rights by-law. The Appellants submitted that their consent was a "condition precedent" to the passing of the resolution, and that, where such consent had not been received, an owners corporation could not make such a by-law (GS & CS Holdings; Khadibzad v The Owners - Strata Plan 53457 [2019] NSWSC 157; Jennifer Elizabeth James v The Owners Strata Plan No. SP11478 (No 4) [2012] NSWSC 590).
2. It was submitted that it "follows", that as by-law 28 conferred rights or special privileges on the Appellants their written consent was required before by-law 28 could be validly "changed" within the meaning of s 133 of the SSMA. As no such consent was obtained, the purported change to by-law 28 was submitted to have been invalid and the decision of the Tribunal at first instance in relation to the issue erroneous in law.
3. The Appellants further submitted that "To the extent that there remains any doubt" as to the correctness of their submissions, any such doubt was removed having regard to the operation of s 149(1)(b) of the SSMA which, with emphasis added, provides:

"(1) The Tribunal may make an order prescribing a change to a by-law if the Tribunal finds -

(a) on application made by an owner of a lot in a strata scheme, that the owners corporation has unreasonably refused to make a common property rights by-law, or

(b) on application made by an owner or owners corporation, that an owner of a lot, or the lessor of a leasehold strata scheme, has unreasonably refused to consent to the terms of a proposed common property rights by-law or to the proposed amendment or repeal of a common property rights by-law or

(c) on application made by any interested person, that the conditions of a common property rights by-law relating to the maintenance or upkeep of any common property are unjust."

1. The Appellants submitted that, "contrary to well established authority", if the Tribunal's construction of the SSMA was correct, the parts of s 149(1)(b) on which they relied "would have no work to do and that aspect of the provision would be superfluous".
2. In support of their contentions, the Appellants relied on the decision in Macey's Group Pty Limited v Owners - Strata Plan No 33591 [2021] NSWCATAP 7. That case concerned whether a lot owner had unreasonably refused to consent to the amendment of a common property rights by-law. The proceedings at first instance and on appeal were submitted to have "proceeded on the basis that consent of the lot owners was required before the amendment could be valid" and that there was nothing to suggest that the approach of the Tribunal and the Appeal Panel in those proceedings was incorrect.
3. The Appellants also relied on the commencement on 11 December 2023, six days after the purported passing of the resolution to change by-law 28, of s 141(5) of the SSMA. Prior to that date, the SSMA did not contain a provision in those terms, or to that effect. Although more eloquently articulated, the crux of the Appellants' contention is that s 141(5) only confirmed what the position had been prior to its commencement. Section 141(5) provided:

"(5) The written consent of the owners on whom a common property rights by-law confers rights or special privileges is not required to consolidate the by-laws for the scheme, if the consolidation does not involve the amendment, repeal or addition of a common property rights by-law."

1. It was submitted to be "illogical and inconsistent with the harmonious reading of the statutory scheme" that a common property rights by-law could be repealed without consent of the relevant lot owner, unless that repeal also involved the consideration of the by-laws, in which case consent became required.
2. The Tribunal at first instance was submitted to have considered the provision "irrelevant on the basis that it was not in effect on 5 December 2023 (when the vote was held), as the provision came into effect on 11 December 2024". The Appellants submitted in those circumstances that "while that may have been correct by reference to the operation of s 143 (having regard to the case law referenced above) in respect of the making of the by-law, the Senior Member failed to separately give any consideration to the operation of s 141(2) of the SSMA which provides that a change to the by-laws has no effect until registered (i.e. on 13 December 2023). The Tribunal was asserted to have been required to consider and determine the lawfulness of the registration of the change to by-law 28 on 13 December 2023 by reference to s 141(5) of the SSMA, and where such registration was impermissible, it should have been set aside under s 232 of the SSMA.

1. The Respondent submitted that the Tribunal had not erred in relation to the issue of consent. The Respondent referred to the unreported decision of the Tribunal of 15 November 2019 in Wichai Ruamsri v The Owners - Strata Plan No 54275 (SCS19/31956) in which it was held that:

"21 Section 143 clearly refers to "make" a by-law and not "change". There is no definition of "make" as there is with "change". I accept the Owners Corporation's submission that "make" does not include "repeal" and the legislature intended for s 143 not to cover the act of repealing a by-law, otherwise it would have used the word "repeal", or at least used the broader term of "change". The fact that the words "amend or repeal" have been removed from the equivalent section in the 1996 Act (which was s 52(1)) lends support to interpreting s 143 of the 2015 Act to mean that "make" does not include "repeal".

...

26 I am satisfied that if the legislature intended for consent to be obtained from a lot owner to amend or repeal a common property rights by-law, s 141 or 143 would have specifically allowed for it."

1. The Respondent conceded that by-law 28, as amended on 5 December 2023 is a common property rights by-law. The Respondent submitted that, having not commenced until 11 December 2023 s 141(5) of the SSMA did not apply to the amendment which was passed on 5 December 2023. The Respondent submitted that, as at 5 December 2023, s 143(1) of the SSMA provided that:

"An owners corporation may make a common property rights by-law only with the written consent of each owner on whom the by-law confers rights or special privileges:

Note Any addition to the by-laws will require a special resolution (see s 141)."

1. The Respondent submitted that the section did not use the "defined word" "change" but rather "make" and required the written consent of each owner on whom a common property rights by-law confers rights or special privileges.
2. The Respondent referred to the amendment of s 143(1) of the SSMA which, on and from 1 July 2025 applied and provided that:

"An owners corporation may make, amend or repeal a common property rights by-law only with the written consent of each owner on whom the by-law confers rights or special privileges.

Note Any changes to the by-laws will require a special resolution (see section 141)."

1. The Respondent submitted, correctly, that the amendment came into force after the decision of the Tribunal at first instance. It was submitted that the amendment added the words "amend or repeal" to s 143(1), the effect being that "A common property rights by-law, made, amended or repealed since 1 July 2025, requires written consent of each owner on whom the by-law confers rights or privileges in order to be amended or repealed. As at 5 December 2023, the requirement for written consent to amend or repeal a common property rights by-law did not exist".
2. The Respondent submitted that the commencement of s 143(1) of the SSMA from 1 July 2025 "followed" from the publication of the Report on the Statutory Review of the Strata Schemes Development Act 2015 and Strata Schemes Management Act 2015 in November 2021 by the New South Wales Government. Recommendation 102 of the Report was:

"Repeal or amendment of a common property rights by-law should require consent of the lot owner for whose benefit the by-law was made. The lot owner's consent cannot be unreasonably withheld."

1. The Respondent submitted that the Appellants reliance on the decision of Ball J in Jennifer Elizabeth James v The Owners Strata Plan No. SP11478 (No. 4) [2012] NSWSC 590 was "misplaced" as the decision was submitted to have "relevantly concerned whether written consent to the making of a by-law was required prior to a general meeting being held at which a by-law was made". The Respondent referred to passages in the Judgment in which his Honour held:

"[88] Nonetheless, it is the owners corporation that owns the property and it is vested with the power to deal with it in accordance with s 52. Within that framework, the owners of the lots "concerned" with the proposed resolution are the owners on whom the rights and privileges are conferred. They are concerned because their individual rights are affected by the proposed resolution. That is not true of other lot owners. Those lot owners may be indirectly affected by a by-law made under s 52 but that is not sufficient to make them persons concerned in the by-law.

[89] The conclusion of the previous paragraph is supported by s 54(1)(b) of the SSM Act. The reference to "the owner or owners concerned" in that section is clearly a reference to the owner or owners on whom the rights or special privileges are conferred. Section 52 gives the owners corporation power to make the relevant by-law and sets out how it is to be made. Section 54 sets out that such a by-law must set out who (the owners corporation or the owners concerned) is responsible for maintaining the property the subject of the by-law. In the context, it must have been intended that the expression "the owner or owners concerned" would have the same meaning in both sections. In addition, it is difficult to see why, if the consent of all lot owners who have an indirect interest in the by-law is required, s 52 also requires a special resolution of the owners corporation.

...

[91] In my opinion, only the consent of the lot owner on whom the right of exclusive possession is conferred and the obligation to pay a fee is imposed is required."

1. The Respondent referred to the terms of s 52(1) of the SSMA in 2012, which provided that:

"(1) An owners corporation may make, amend or repeal a by-law to which this Division applies, but only:

(a) with the written consent of the owner of the lot or lots concerned and, in the case of a strata leasehold scheme, the lessor of the scheme, and

(b) in accordance with a special resolution.

(2) A by-law to which this Division applies may be made even though the person on whom the right of exclusive use and enjoyment or the special privileges are to be conferred had that exclusive use or enjoyment or enjoyed those special privileges before the making of the by-law.

(3) After two years from the making, or purported making, of a by-law to which this Division applies, it is conclusively presumed that all conditions and preliminary steps precedent to the making of the by-law were complied with and performed."

1. It was submitted that whether the prior written consent of an owner was required to repeal or amend a by-law conferring a right of exclusive use and enjoyment of common property on an owner did not arise in James and was accordingly not considered by Ball J.
2. With respect to the Appellants' contention that the amendment to by-law 28 was a change in the by-law which occurred on the date of its registration (13 December 2023), by which date s 141(5) of the SSMA was in effect the Respondent relied upon Ball J's statement in James at [96] that a by-law is made on the date of the meeting at which it is approved. His Honour there said at [96]:

"The owners corporation submits that the by-law is not "made" until it is registered in accordance with s 48(1) of the SSM Act. That section provides:

"An amendment or repeal of a by-law, or a new by-law, has no force or effect until:

(a) the owners corporation has lodged a notification in the form approved under the Real Property Act 1900 in the Registrar General's office, and

(b) the Registrar General has made an appropriate recording of the notification in the folio of the Register comprising the common property.

I do not accept that submission. Section 48 is not concerned with the making of a by-law. It is concerned with when a by-law that has already been made becomes effective."

1. The Respondent referred to the provisions of s 141(2) of the 2015 iteration of the SSMA which was in the same terms as s 48(1) of the 1996 Act to which Ball J referred.
2. After referring to Project Blue Sky, the Respondent submitted that the ordinary English meaning of the words "make a by-law" are "to cause a by-law to come about or to come into existence". The legislature's use of the word "make" rather than "change" when considered in the context of the Act as a whole, including a definition of "change" in s 133, was submitted to support a finding that "make" in s 143(1), rather than the word "change", was intended to limit the operation of s 143(1) to making of by-laws and not amending or repealing them. The amendment to s 143(1) from 1 July 2025 was submitted to support this meaning. The Respondent submitted that, had the word "make" included the concepts of amend or repeal, the amendment which came into force on 1 July 2025 would have been unnecessary. The decision in Khadibzad upon which the Appellants relied was submitted to provide no support for their appeal. Khadibzad was submitted to have been concerned with amendment to a by-law at an owners corporation meeting held on 14 December 1999 under the 1996 Act. Section 52(1) of the 1996 Act required written consent of the owner of a lot concerned by the by-law to the making, amendment or repealing of the by-law. As such, the Court's decision was submitted to be consistent with the section. It was submitted that "no equivalent requirement can be found in section 143(1) of the Act as it was as at 5 December 2023". It did not require written consent to the amendment or repeal of a common property rights by-law.
3. The Respondent submitted that, in Macey's Group, "Each party proceeded on the basis that consent to the repeal was required from the appellant. Neither party raised as an issue in the proceedings whether consent of the appellant was required to the repeal, and it was not an issue about which the Tribunal or Appeal Panel made any finding".

1. In written submissions filed 16 September 2025 the Appellants submitted that the Respondent's contention that s 142 was "irrelevant" was misconceived. The Appellants reiterated their previous submissions and submitted that s 142 was "in fact critical to the operation of Part 7 of the SSMA by confirming that the definition of "common property rights by-law" includes both a by-law that confers exclusive rights (etc.), and a by-law that "changes" such a by-law".
2. The Appellants submitted that the Respondent's "focus" on "make" in isolation from the definition of the subject matter to which the verb is directed "ignores the effect of the definition of "common property rights by-law" in s 142". It was submitted that "applying that definition to s 143, the construction of that provision is given cohesive and harmonious operation: an owners corporation may "make" a "common property rights by-law", being a by-law that either confers particular rights, or "changes" an earlier by-law. In turn, s 133 confirms that the term "changes" includes an amendment or repeal of an existing by-law".

* The following paragraph or its footnote may need end punctuation.

1. With respect to the Respondent's reliance on the July 2025 amendments to the SSMA the Appellants submitted that "The amendment to s 143 did not reflect Parliament's desire to alter the operation of that provision. It was instead introduced as a result of apparent uncertainty (exploited by the Respondent in this case) as to the operation of the statutory scheme."
2. The Appellants submitted that:

"The explanatory memorandum for the Strata Schemes Legislation Amendment Bill 2025, noted in relation to the proposed amendment that it "implements part of recommendation 102" from the "report on the statutory review of the Strata Schemes Development Act 2015 and Strata Schemes Management Act 2015" (p5). In turn, that report (tabled in Parliament) explained (at p77):

"The Discussion Paper sought feedback on how well the common property rights by-law provisions of the Management Act were working and received mixed responses. The main concern identified was a lack of clarity over the repeal or amendment of common property rights by-laws. If a common property rights by-law has been adopted for the benefit of a particular lot owner, who is likely to have been paying higher levies for those rights over common property, the review heard that it is unclear whether it is their consent needed before that by-law is repealed or amended.""

1. It was accordingly submitted, contrary to the submissions of the Respondent, the "Parliament was in fact seeking to remove uncertainty as to the operation of the provision. It does not indicate that the Parliament intended the earlier provision to have a different operation".
2. The Respondent's submissions with respect to the decision in Wichai were submitted to be "unpersuasive" and not submitted by the reasons of the Tribunal. The Tribunal's decision was submitted to not "indicate that the Tribunal considered the operation of other provisions within Part 7 when construing the operation of s 143" and that it was "apparent" that the Tribunal did not. It was submitted that the Tribunal ought to have read the provisions of Part 7 as a whole, to provide them with cohesive operation and ought to have made findings consistent with those urged in the appeal. With respect to the decision in Macey's, the Appellants submitted that "The decision proceeds on the (unstated) basis that consent of the lot owner was required (as it was the withholding of that consent which invoked the jurisdiction of the Tribunal). It does not follow, however, that the Respondent's criticism of Macey's is sound. On the contrary, it should be rejected".
3. The Appellants submitted that the Appeal Panel was not bound by the arguments presented and may "inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice" (s 38(2) CAT Act). The Appellants submitted that, had the Appeal Panel in Macey's considered that no consent was required, the matter could have been dealt with on that basis, and speculated about what may have arisen had that occurred. It is unnecessary for the Appeal Panel to go beyond what was decided in the authorities relied upon by the parties, much less to speculate about what may have happened in the event that cases referred to by them had been argued differently.
4. Potentially more significantly, the Appellants submitted that the Respondent has not identified any subsequent decision of the Tribunal which doubted the correctness of the decision in Macey's. It was submitted that subsequent decisions of the Appeal Panel in which Macey's was cited do not raise doubts as to its correctness (Bruce v Knight [2021] NSWCATAP 224 at [52]; Choi v The Owners Strata Plan No 53482 [2024] NSWCATAP 233 at [75], 102).
5. The Appellants accepted that the decisions in James and Khadibzad concerned different statutory provisions. It was submitted however that in GS & CS Holdings, at [32], the Appeal Panel "embraced" the reasoning in both James and Khadibzad as "applicable to the SSMA". The decision in GS & CS Holdings was submitted to have concerned a resolution which sought to amend an existing by-law, the Appeal Panel holding that such a resolution constituted a proposal to "change a common property rights by-law" which required the consent to be obtained from the relevant lot owners as a condition precedent to any resolution being passed.

1. The Appeal Panel agrees with the contention of the Respondent that the Tribunal at first instance did not err in holding at [87] that when the resolution was passed on 5 December 2023, s 141(5) of the SSMA was not in force or effect, and was not until 6 days later. In those circumstances, the critical issue for determination is whether, as at 5 December 2023 the Respondent required the consent of the Appellants to change by-law 28. The Appeal Panel also accordingly agrees with the contention of the Respondent that, following the decision of Ball J in James that, if valid when made on 5 December 2023 the registration of the resolution on 13 December 2023, by which time s 141(5) of the SSMA was in force would not render the resolution of 5 December 2023 invalid. As Ball J explained in James and the SSMA makes clear, registration of a resolution simply relates to when the resolution takes effect (s 141(2)). Section 141(2) of the SSMA which was in substance identical to the terms of s 48(1) of the SSMA when Ball J decided James.
2. The principles governing whether an original statutory provision should be interpreted in the light of an amendment to it are complex, and have been agitated to only a limited extent in this appeal. The issue is further complicated in this case by the fact that s 141(5) introduced a new provision into the SSMA, rather than amending an existing provision. In Grain Elevators Board (Vic) v Dunmunkle Shire (1946) 73 CLR 70; [1946] HCA 13, Dixon J considered that, in an appropriate case, an amending provision could be taken into account when interpreting an earlier statutory provision. In Allina Pty Ltd v Federal Commissioner of Taxation [1991] FCA 78; (1991) 28 FCR 203; 99 ALR 295, discerning no ambiguity in the words in question, the Full Court of the Federal Court declined to interpret a statutory provision by reference to legislation amending the provision. In other cases, the Grain Elevators principle has been applied in cases involving ambiguity or uncertainty (see Kalwy v Secretary, Department of Social Security [1992] FCA 489; (1992) 38 FCR 295; 110 ALR 38, Whelan v Australian Securities Commission (No 2) (1994) 58 FCR 352; 33 ALD 53). In Interlego AG v Croner Trading Pty Ltd [1992] FCA 624; (1992) 39 FCR 348; 111 ALR 577, Gummow J referred to the need to ensure that amending provisions were not intended to remove uncertainty about the meaning of the original provision.
3. Interpreting the provisions of the SSMA which were in force on 5 December 2023 in the light of subsequent amendments to the SSMA requires caution. As the authorities make clear, and both parties accept, the focus of attention is on the relevant provisions of the SSMA which were in force as at 5 December 2023. It is not suggested that the amendments to the SSMA which came into effect after 5 December 2023 were intended to have retrospective application, and neither party suggests that to be the case. Although, as submitted by the Respondent, s 141(5) was intended by the legislature to remove uncertainty with respect to the requirement of owner's consent to changes to property by-laws, that does not necessarily mean that s 143 should not be interpreted as having that effect prior to its enactment. If, prior to the enactment of s 141(5), s 143 was not intended to require owner's consent, s 141(5) materially altered, rather than clarified that issue. Although not determinative, the Appeal Panel considers that the enactment of s 141(5) provides support for the Respondent's contentions. In Deputy Commissioner of Taxation (SA) v Elder's Trustee and Executor Co Ltd (1936) 57 CLR 610; [1936] HCA 64, the High Court adopted the principle stated in Ormond Investment Co v Betts [1928] AC 143 that "Where the interpretation of a statute is obscure or ambiguous, or readily capable of more than one interpretation, light may be thrown on the true view to be taken of it by the aim and provisions of a subsequent statute".
4. As has been submitted, by the Appellants [14], and properly not disputed by the Respondent, the starting point for the ascertainment of the meaning of a statutory provision is the text of the provision, having regard to its context and purpose. In SAS Trustee Corporation v Miles (2018) 361 ALR 206; [2018] HCA 55, Edelman J said, at [64] that "...the task of statutory construction must begin and end with the text of the statute", the words of which are "interpreted in their context and in the light of their purpose" and, as with contractual interpretation, "the clearer the natural meaning the more difficult it is to justify departing from it".
5. It is not in doubt that a provision of an Act is not read in isolation but must be read and understood within the context of the entire Act, and is to be construed in a manner that best gives effect to its purpose and language while maintaining the unity of the statutory scheme (Project Blue Sky [68]-[70]). All words of a statutory instrument must prima facie be given some meaning and effect, so that no clause, sentence, or word shall prove superfluous, void or insignificant if, by any other construction, they may all be made useful and pertinent (Project Blue Sky at [71]).
6. Section 33 of the Interpretation Act 1987 (NSW) provides that "In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation". Professor Pearce, Statutory Interpretation in Australia, 9th edn., at page 50 suggests that the "task" under s 33 is to "seek to discover the underlying purpose or object of the Act or other legislation in which a provision is contained, and, if possible, to adopt an interpretation of the provision that furthers the purpose or object".
7. Consistent with s 33 of the Interpretation Act and authority, it is necessary to have regard to the relevant provisions of Part 7 of the SSMA which are concerned with "by-laws for strata schemes" in order to undertake the "task" of interpretation raised in this appeal. That exercise does not empower the Appeal Panel to "construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose" (Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; [2012] HCA 3). The Appeal Panel must not enter into "the legislative realm of amending the Act by reference to what it may be supposed Parliament might have provided if it had considered the specific circumstances" of the case under consideration (Esso Australia Pty Ltd v Australian Workers' Union (2017) 350 ALR 404; [2017] HCA 54).
8. Part 7 of the SSMA is concerned with "By-laws for Strata Schemes". Section 133 of the SSMA provides that, in Part 7, "change the by-laws for a strata scheme means amend or repeal the by-laws or add to the by-laws". It is not in contest that by-law 28 was a by-law for the purposes of Part 7 of the SSMA.
9. Section 141 relevantly is concerned with the "procedure for changes to by-laws" and provides s 141(1) that an owners corporation may, in accordance with a special resolution of the owners corporation, change the by-laws of the strata scheme". Section 141(2) provides that any "change" to the by-laws of a strata scheme has no effect until the owners corporation has lodged the relevant notification with the Registrar General and the Registrar General has made an appropriate recording of the notification in the folio of the Register for the common property".
10. The Appellants rely on the provisions of s 142 of the SSMA which is concerned with "common property rights by-law". The Respondent submits that the section is not relevant for present purposes. The Appeal Panel is respectfully unable to agree with that contention. To ignore the section, having regard to its terms is to risk determining this issue without regard to the entirety of the context in which s 143 of the Act finds expression. The section is part of the statutory scheme, and informs the task of its interpretation. Section 142 of the SSMA provides that:

"For the purposes of this Act, a common property rights by-law is a by-law that confers on the owner or owners of a specified lot or lots in a strata scheme -

(a) a right of exclusive use and enjoyment of the whole or any specified part of the common property, or

(b) special privileges in respect of the whole or any specified part of the common property (including, for example, a licence to use the whole or any specified part of the common property in a particular manner or for particular purposes), or that changes such a by-law."

1. The Appellants rely on the reference to "changes" in support of their contention that the legislative scheme intends that whether by amendment or repeal "changes" to by-laws require the owners' consent. Howsoever described, the Appellants contend that the purported resolution of 5 December 2023 "changed" by-law 28 and was thus captured by s 143(1).
2. Section 143(1) of the SSMA provides that "an owners corporation may make a common property rights by-law only with the written consent of each owner on whom the by-law confers rights or special privileges".
3. Section 148(1) of the SSMA provides that the Tribunal may, on application by a person entitled to vote on the amendment or repeal of a by-law or addition of a new by-law or the lessor of a leasehold strata scheme may make one of the following orders:

"(a) an order that the amendment be revoked,

(b) an order that the repealed by-law be revived,

(c) an order that the additional by-law be repealed."

1. Section 149 of the SSMA upon which the Appellants placed reliance provides:

"(1) The Tribunal may make an order prescribing a change to a by-law if the Tribunal finds -

(a) on application made by an owner of a lot in a strata scheme, that the owners corporation has unreasonably refused to make a common property rights by-law, or

(b) on application made by an owner or owners corporation, that an owner of a lot, or the lessor of a leasehold strata scheme, has unreasonably refused to consent to the terms of a proposed common property rights by-law, or to the proposed amendment or repeal of a common property rights by-law, or

(c) on application made by any interested person, that the conditions of a common property rights by-law relating to the maintenance or upkeep of any common property are unjust.

(2) In considering whether to make an order, the Tribunal must have regard to -

(a) the interests of all owners in the use and enjoyment of their lots and common property, and

(b) the rights and reasonable expectations of any owner deriving or anticipating a benefit under a common property rights by-law.

(3) The Tribunal must not determine an application by an owner on the ground that the owners corporation has unreasonably refused to make a common property rights by-law by an order prescribing the making of a by-law in terms to which the applicant or, in the case of a leasehold strata scheme, the lessor of the scheme is not prepared to consent.

(4) The Tribunal may determine that an owner has unreasonably refused consent even though the owner already has the exclusive use or privileges that are the subject of the proposed by-law.

(5) An order under this section, when recorded under section 246, has effect as if its terms were a by-law (but subject to any relevant order made by a superior court).

(6) An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order."

1. Although expressed in more sophisticated terms, the rival contentions can be summarised in relatively simple terms. Inherent in the Respondent's contention is that, provided an owners corporation expresses a resolution as "changing" a by-law, the owners' consent is not required for it to be passed, notwithstanding that s 143 of the SSMA clearly requires their consent when an owners corporation "makes" a common property rights by-law which confers rights on them. In substance, the Appellants contend that the statutory scheme articulated in Part 7 of the SSMA, and the terms of its provisions make clear that this could not have been the legislative intention.
2. The Respondent submits that, applying the ordinary English meaning of "make a by-law" as "to cause a by-law to come about or to come into existence", rather than "change", including the definition of "change" in s 133 supports a finding that the operation of s 143(1) of the SSMA was intended to be limited to the making of by-laws and not amending or repealing them. As noted earlier the Respondent disputes that s 142 is relevant to the construction of s 143 of the SSMA.
3. Section 133 of the SSMA defines "change" as meaning "amend or repeal" the by-laws or adding to them. It is difficult to suggest a difference of substance between "changing" and "amending" a by-law. The Shorter Oxford English Dictionary defines "amend" to include "make alterations, correct, convert, rectify".
4. As its terms make clear, s 143(1) of the SSMA is expressed to regulate when an owners corporation may "make" a common property rights by-law. However, when regard is had to s 142, it is reasonably clear that a by-law which "confers on the owner or owners" of a specified lot or lots in the strata scheme rights of exclusive use and enjoyment of common property or special privileges in respect to it is, by the use of the present tense "confers" a by-law which is captured by s 143(1) of the SSMA. Construed literally and narrowly, that construction would not necessarily be embraced. Part 7 is arguably "remedial", as it provides for the "conferral of benefits" of common property on the owners of a strata plan. As such, the provisions of Part 7 are entitled to be interpreted "beneficially" and "construed so as to give the fullest relief which the fair meaning of its language will allow" (Bull v Attorney-General (NSW) (1913) 17 CLR 370; [1913] HCA 60).
5. The difficulty the Appeal Panel has with the Respondent's contentions is that it involves accepting that an owner's consent is required in order that the owners corporation may "confer" rights or special privileges but, when changing by-laws so as to remove those special privileges, no such consent is required. If s 143(1) does not capture resolutions to "change" property rights by-laws, it is necessary to identify what, if any, provision governs resolutions to do so. If, as the Respondent contends, s 143(1) of the SSMA was not intended to apply to changes to common property rights by-laws, notwithstanding the definition in s 133 and the provisions of s 142 of the SSMA, it is surprising that the Act did not make provision in that regard. If the Respondent's construction of s 143(1) is accepted, it is arguable that, as no other provision applies, having conferred rights or special privileges with respect to common property, subject to the requirements of s 148 of the SSMA, those rights cannot be changed or removed, other than by repealing and making a new by-law, each of which steps require the consent of the owners. It is difficult to see what work there would be for s 149 if the Respondent's interpretation of s 143(1) is accepted.
6. Having regard to the statutory scheme as a whole, the Appeal Panel is satisfied that as at 5 December 2023 s 143(1) of the SSMA required the consent of the Appellants to the amendment to by-law 28. Construing Part 7 in that manner arguably means that, once conferred, an owner's common property rights could never be disturbed without their consent. The Appeal Panel cannot accept that its construction of s 143 of the SSMA has that effect.
7. Section 149 of the SSMA provides the means by which, potentially, the Appellants could be divested of the exclusive rights they have enjoyed with respect to the common property parking space for some years. It is unnecessary to speculate about what might happen if the Respondent sought to "change" by-law 28 in reliance upon s 149 of the SSMA. Considered in its totality, the Appeal Panel's interpretation of s 143(1) of the SSMA the legislative scheme of Part 7 with respect to changes to common property by-laws is to be preferred to the interpretation advanced by the Respondent. The Appeal Panel's interpretation recognises the legislative intention with respect to the conferral of rights to exclusive use of common property on lot owners, and the nature of such rights on the one hand, and the ability of owners corporations to prevent lot owners from unreasonably refusing to relinquish such rights on the other.
8. For the foregoing reasons, Ground 1 is made out. The Appeal Panel's decision involves no criticism of the Tribunal at first instance. As the submissions in the appeal confirm, the interpretation of s 143(1) of the SSMA is not without complexity. With no disrespect to the advocates at first instance, the submissions of both parties to the appeal have better informed the Appeal Panel with respect to the issue than, understandably, occurred at first instance.
9. However, it is important to note that the original application was argued pursuant to section 148 of the SSMA, rather than section 150 of the SSMA. This is made clear by the member at [7]. The original application also sought to revoke the 2023 common property by-law 28 amendment. At no point has the appellant raised that they are seeking to invalidate the common property by-law 28 pursuant to section 150 of the SSMA.
10. Section 150 of the SSMA states the following:

150 Order invalidating by-law

(1) The Tribunal may, on the application of a person entitled to vote on the motion to make a by-law or the lessor of a leasehold strata scheme, make an order declaring a by-law to be invalid if the Tribunal considers that an owners corporation did not have the power to make the by-law or that the by-law is harsh, unconscionable or oppressive.

(2) The order, when recorded under section 246, has effect as if its terms were a by-law repealing the by-law declared invalid by the order (but subject to any relevant order made by a superior court).

(3) An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order.

1. Although in substance doing so, the appellants did not formally make the argument that, the common property by-law was invalid because the respondent's failure to gain the appellants' consent to amend common property by-law 28, rendered it beyond its power. The appellants did not formally seek an order invalidating the by-law on that basis. The appellants' claim was brought pursuant to section 148 of the SSMA to revoke the by-law. The respondent did not resist the appellants' case on the basis that the relief sought by the appellants, if available, was pursuant to s 150, and not pursuant to s 148 of the SSMA.
2. Section 148(2) of the SSMA identifies the considerations the Tribunal is required to consider prior to making an order pursuant to section 148 of the SSMA to revoke an amendment. The section assumes that the amendment under challenge was made within power. The SSMA directs that the Tribunal may only make the order if it considers that, having regard to the interest of all owners of lots in a strata scheme in the use and enjoyment of their lots or the common property, the change to the by-laws should not have been made by the owners corporation. There is no directed consideration for whether the respondent had the power to make the by-law but rather when having regard to the interest of all owners of lots in a strata scheme in the use and enjoyment of their lots or the common property, the change should not have been made.
3. These matters create a dilemma for the Appeal Panel - to uphold the appellants' challenge in reliance on the absence of power in circumstances where s 150 was not relied upon for that purpose, or to reject the challenge in circumstances where that point was not taken by the respondent, and both parties' submissions engaged with the issue of power, or its absence?
4. Section 38(4) of the CAT Act enjoins the Appeal Panel to "act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal terms". Particularly in a case such as the present, that does not mean that no regard is had to how the parties, each having been competently legally represented, has conducted the case. The parties having agitated the "substantial merits" of the case, the Appeal Panel does not find that applying a strict pleading approach is in the interests of justice in the circumstances explained above.
5. Although the Appeal Panel finds this ground made out in accordance with its terms, to allow the appeal and decline to remit the proceedings for re-hearing, precluding the respondent from directly confronting a challenge to its power to amend the by-law without the appellants' consent would not be in the interests of justice. That is particularly so in view of the other provisions of the SSMA discussed above, in reliance upon which the respondent might seek to amend the by-law, and appellants resist attempts to do so.

1. Ground 2 is concerned with whether the change to the by-laws should have been set aside by the Tribunal at first instance. In view of the Appeal Panel's decision with respect to Ground 1, this ground may not require consideration. As the ground has been agitated skilfully and extensively, the Appeal Panel has considered the ground. Our findings with respect it are recorded below.

1. The Appellants submitted that, if Ground 1 was rejected, the Tribunal at first instance was required to consider whether it should set aside the changes to by-law 28 under s 148(1) of the SSMA, which provides that the Tribunal may revoke an amendment to the by-laws of a strata scheme if "the Tribunal considers that, having regard to the interests of all owners of lots in a strata scheme in the use and enjoyment of their lots or the common property, the change to the by-laws should not have been made by the owners corporation". The Appellants submitted that the provision made clear that the Tribunal was required to consider the interests of all owners as a whole, rather than the interests of any individual lot owners. It was submitted that the Tribunal did not "appear to give any real or meaningful consideration to the interests of lot owners as a whole but rather ... appeared to focus on whether it was" meritorious that parking space 9 be given to lot 2.
2. The Appellants submitted, correctly, that changing, or for that matter not changing by-law 28 did not create any benefit for the lot owners as a whole, but "simply granted a benefit to lot 2 to the detriment of lot 1". The Appellants submitted however that the change in the by-laws "set a precedent" which was "for the arbitrary taking of an exclusive use right from one lot owner and transferring it to another lot owner, over the objections of the first lot owner. Such a precedent could readily adversely affect other lot owners in future who hold similar exclusive rights. In effect, the Decision left all other lot owners vulnerable to similarly arbitrary and adverse deprivations of rights and proprietory interests in the common property".
3. The Appellants relied on the Tribunal's asserted failure to have regard to the fact that when the Appellants purchased Lot 1 the registered by-laws of the strata plan showed that Lot 1 "came with exclusive use rights over the (relevant) car space". The Appellants submitted that "all lot owners benefit in having confidence that the registered by-laws of the strata scheme, particularly those that have been registered undisturbed for over 2 years, are accurate and can be relied upon. The Tribunal's decision undermined any such confidence that could be placed in the by-law".
4. The apparent finding of the Tribunal that the original decision in 2014 to grant the exclusive use right to Lot 1 was a mistake was submitted to have been "inappropriate" on the evidence before the Tribunal. The documentary records of the Respondent were submitted to "not sufficiently identify the subjective intentions of lot owners at the time that by-law 28 was passed and registered in 2014". The Tribunal was submitted to have failed to consider "Why if by-law 28 was passed in error in 2013, it was allowed to remain undisturbed for nearly 2 years (and beyond), including during the period in which lot 1 was obviously put up for sale on and sold to the Appellants. The notion that by-law 28 was a mistake, and it remaining in that form between February 2014 and September 2016 also being a mistake, was purely speculative". The Tribunal was submitted to have failed to address "why it was in the interests of lot owners that no one could place any reliance on the by-laws as accurately reflecting their proprietory legal rights and interests". The Appellants submitted that if there was a mistake in by-law 28, that should have been remedied well before September 2016, particularly as the by-laws were altered in the intervening period.
5. The Appellants submitted that, to the extent that leave was required to agitate this ground leave should be granted on the basis that it raised an important issue of principle and that there has been a "significant detriment caused to the Appellants, as they have been arbitrarily deprived of a legal right that has significant value".

1. In support of its contention that this ground lacked merit, the Respondent referred to the findings of fact of the Tribunal which were submitted to be relevant to the exercise of the discretion conferred by s 148 of the SSMA, (97), they being that:

"(i) each resolution passed on 12 December 2013, 13 April 2015 and 14 September 2015, intended to grant the owner of Lot 2 exclusive use of car space 9;

(ii) that the 1981 resolution contained in Dealing S718286 granted the owners of various lots who did not own a garage, the exclusive use of a car space on common property, and that position remained for over 30 years;

(iii) that the Appellants have not reconciled in evidence or submissions the wording in the by-law with the plan showing the number 2 on car space 9;

(iv) that nowhere in the contemporaneous documents including notices and minutes of meetings is it stated or recorded that the Appellants were to have exclusive use and enjoyment of car space 9;

(v) the amendment of by-law 28 on 5 December 2023 was intended to remedy for the fourth time, the same error that had occurred in recording the owners of Lot 1 as the owner of car space 9;

(vi) the recording of the owners of Lot 1 as having exclusive use of car space 9 was a consequence of inadvertence or negligence on the part of the strata manager and the Respondent's former solicitor on at least four occasions;

(vii) it is in the interests of all owners in the strata scheme for these errors to be corrected and for each lot owner to have a parking space either in a garage lot or a designated space on the common property."

1. The Respondent disputed that the Tribunal at first instance failed to give any real or meaningful consideration to the interests of all lot owners in their use and enjoyment of lots and common property, as required by s 148(2) of the Act in exercising its discretion. The Respondent submitted that the Tribunal's findings of fact supported the inference that the owners from time to time in the strata scheme had never intended to grant the owners of Lot 1 exclusive use of a common property car space, that the Tribunal had not been provided with evidence to satisfy it that any notices or minutes of meeting had ever recorded that the Appellants were granted such rights, and that errors which were not of the Respondent's making, which resulted in the Appellants inadvertently being granted exclusive use of the parking space when the intention of the owners for over 30 years had been that all owners who did not have a garage or parking space on title would be granted exclusive use of a common property parking space were relevant to the exercise of discretion and matters to which the Tribunal had appropriate regard.
2. The Respondent disputed that the Tribunal focused solely on the interests of the owners of Lots 1 and 2 submitting that the Tribunal's findings related to "the intentions of all owners in their use and enjoyment of common property, and the desire of owners to ensure that all owners who did not have a parking space on title would be granted exclusive use of a common property space".
3. The Respondent submitted that, to the extent necessary, the Appellants should not be granted leave to agitate this ground on the basis that:.

"(a) issues of principle do not arise from the findings of fact;

(b) questions of public importance on matters of administration or policy which might have general application do not arise from the findings of fact;

(c) the matter does not involve an injustice which is reasonably clear and for which it would be unjust to allow the findings of fact to stand;

(d) no factual error that was unreasonably arrived at or was clearly mistaken has been identified; and

(e) the Tribunal is not alleged to have gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."

1. The Respondent's submissions identified in some detail the basis of each of those contentions.

1. The Appellants reiterated their earlier contentions with respect to the "relevant inquiry" under s 148 of the SSMA, and their earlier contention that the Tribunal had failed to consider the interests of all lot holders.
2. On 27 October 2025, pursuant to leave granted at the conclusion of the hearing of the appeal, the Appellants filed an Amended Notice of Appeal which provided ground 2(d):

"that the Tribunal took into account an irrelevant consideration at 97(5) of the decision by taking into account whether each lot owner should have a parking space, in circumstances where:

(i) s 148(1) of the Strata Schemes Management Act 2015 (NSW) empowers the Tribunal to assess an application by a person entitled to vote on "the" amendment and to consider whether to make an order that "the amendment" or, "the repealed by-law", or "the additional by-law" be revoked, revived or repealed;

(ii) s 148(2) of the Strata Schemes Management Act 2015 (NSW) directs the Tribunal to consider the interests of all owners of lots in the strata scheme to determine whether "the change" under review (not any anterior or other change) should not have been made;

(iii) on the proper construction of s 148, including by reason of the use of the definitive article and having regard to the nature of the application, the section does not allow the Tribunal to consider whether one or more previous resolutions (not being the resolution for which application has been made) were proper and/or appropriate;

(iv) the amendment to by-law 28, being the relevant resolution under review by the tribunal at first instance, only had the effect of removing the rights of one lot owner and granting them to another owner and did not call for a challenge to any anterior resolutions: or alternatively, (the Tribunal) placed undue weight on this consideration."

1. In support of the amended ground, the Appellants submitted that:

"(a) the Tribunal found at 1 of the decision that at the time the Appellants purchased Lot 1 on 5 September 2016, Lot 1 had been granted exclusive use of car space 9 pursuant to by-law 28;

(b) by December 2023, Lot 1 had had the benefit of the right of the exclusive use of car space 9 for nearly 10 years (excluding 17 September 2017 - 28 October 2018), having first been granted on 21 February 2014;

(c) the exclusive use right granted to Lot 1 had been reaffirmed in dealing AJ643314 registered on 10 July 2015 and dealing AN811818 registered on 29 October 2018;

(d) exclusive use by-laws have been held to create proprietory rights in favour of lot owners that should not easily be disturbed."

Respondent's further submissions of 3 November 2025

1. The Respondent disputed that the Tribunal took into account an irrelevant matter in the exercise of its discretion pursuant to s 148 of the SSMA. The Respondent otherwise relied on its primary submissions with respect to this issue. On 5 November 2025 the Appellants filed further short submissions in which the substance of their earlier submissions were reiterated. The Appellants succinctly submitted that the Respondent's submissions should be rejected for four specific reasons, they being:

(1) First, s 148(1) of the SSMA uses the definite article to define its scope. It is directed to consideration of "the amendment or repeal" the subject of the application and empowers the Tribunal to make an order as to "the amendment", or "the repealed by-law" or "the additional by-law";

(2) Second, contrary to the Respondent's submission that the Tribunal at first instance made no finding "as to whether prior resolutions were proper or appropriate", the Tribunal did "precisely that". At [97] the Senior Member found that "errors have occurred on three occasions" which ought to be "corrected". Those errors concern the resolutions previously made by the Owners Corporation which, the Senior Member considered, did not reflect the true intention of those voting.

(3) Third, the operation of the section propounded by the Respondent would lead to absurd results. On the Respondent's case, a lot owner seeking to challenge a particular resolution, may well lose that application because - unbeknownst to that lot owner - there had been an error or errors committed in the previous resolutions (which may have been passed many years prior to that lot owner's involvement with the property).

(4) Fourth, the Respondent's submission with respect to "incorrect registration" does not grapple with the Torrens system of property interests in NSW, where a person inspecting the Register must be able to place faith in its integrity. It is for that reason the law recognises significant limitations on the use of external facts or circumstances to construe a registered interest or dealing (Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528 [2007] HCA 45; Dickson v Petrie [2025] NSWCA 110 at 64; Deguisa v Lynn (2020) 268 CLR 638 [2020] HCA 39).

1. With no disrespect to Counsel for the Appellants, their further submissions did not materially advance their case, which had been skilfully and comprehensively agitated in writing and orally earlier.

1. As the parties clearly recognise, this challenge is to the exercise of judicial discretion. The principles governing such challenges are not in doubt, and have not been for 90 years. In House v R (1936) 55 CLR 499; [1936] HCA 40, the High Court said that the:

"... manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. 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 result embodied in his order, but, if upon 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 reposes 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."

1. As the Appellants contend, only two lot owners were materially impacted by the Tribunal's decision with respect to by-law 28 - the Appellants who lost the right to the exclusive use of car space 9 and the owner of Lot 2, who gained that right. Any by-law conferring removing or varying exclusive use rights with respect to a parking space in common property is unlikely to have immediate or potentially longer term implications for other lot owners. The Appellants submit that the Tribunal failed to consider the interests of "all" lot owners, as required by s 148 of the SSMA and "arbitrarily" removed their exclusive rights and conferred them unjustly on another lot owner. As is not in doubt, the owner of Lot 2 did not own a garage or otherwise have exclusive rights to use a parking space, and was the only lot holder in that position, all others having either a garage or exclusive use of a parking space.
2. It is important to consider the basis of the Tribunal's decision. The Tribunal identified at [90] the relevant statutory provision - s 148 of the SSMA. There was no issue at first instance, or on appeal that the present Appellants had standing to apply for an order under s 148. The Tribunal held [92] that the power to make an order under s 148(1) was discretionary. That finding has sensibly not been challenged.
3. The Tribunal recorded [93] the submission on behalf of the Respondent that the onus was on the Appellants to satisfy the Tribunal that it is in the interests of all lot owners' use and enjoyment of their lots or common property that the amendment to by-law 28 should not have been made. The Tribunal accepted that contention, and held that "as the moving parties, the onus is on the Applicants to persuade the Tribunal to exercise its discretion in their favour". The Appellants have not asserted that the Tribunal erred in finding that they bore the onus of persuasion pursuant to s 148. That has potential significance with respect to this challenge. Were the onus on the Respondent to demonstrate that the amendment to the by-law should have been made in the interests of all lot owners, it may have struggled to discharge that onus, but that is not the test.
4. The Tribunal recorded [94] that each party had raised "several matters" in support of their cases with respect to s 148. The Tribunal recorded [95] the matters upon which the Appellants relied. To the extent that it is controversial in the appeal, the Appeal Panel is not persuaded that the Tribunal failed to identify the substance of any matter relied upon by the Appellants. Those matters were:

(1) Other than the Mueller letter dated 30 April 2018, which refers to but does not include the notice of the extraordinary general meeting held on 12 December 2013, there is no evidence to support the assertion that the intention of that meeting was for the Lot 2 owner to be granted exclusive use of car space 9.

(2) The Schedule to the 2023 dealing specifies that Lot 1 has exclusive use over car space 9.

(3) For the 2023 resolution, the Respondent did not obtain consent from affected lot owners to all amendments to by-law 28. The consent forms signed by lot owners before passing the 2023 resolution said nothing about removing the applicants exclusive use of car space 9 and there is no evidence that the by-law was ever shown to lot owners before signing the consent forms.

(4) The wording of by-law 28 as recorded in the 2023 dealing differs from that of the by-law wording approved by the 2023 resolution.

(5) Car space 9 was an important factor influencing their decision to purchase Lot 1 and Lot 22.

1. The Tribunal recorded [96] the matters upon which the Respondent relied:

(1) The applicants have solely addressed their interests and not the interests of all lot owners in relation to the amendments made to by-law 28.

(2) The applicants have not addressed the difference in the by-law 28 wording in the April 2015 and September 2017 dealings which refer to Lot 1 as having exclusive use of car space 9 and the plan annexed to both which designates Lot 2 in the space.

(3) It is not in the interests of all the owners in the use and enjoyment of lots of common property that all owners accept the owner of Lot 2 have a parking space while the applicants have both a garage and a parking space.

(4) By-law 28 grants to the 14 owners who do not have a garage on title the right to park a car in a common property parking space.

(5) The history of the matter discloses a clear intention on the part of the Respondent since 5 August 1981 to make a by-law that would give all owners who did not own a garage a place to park a motor vehicle.

(6) A resolution to grant the owner of Lot 2 exclusive use of a parking space under by-law 28 was expressed at general meetings held on 5 August 1981, 12 December 2013, 13 April 2015 and 5 December 2013 [sic].

(7) No resolution was ever passed at the Respondent's special meeting granting the owners of Lot 1 exclusive use of a common property parking space.

(8) There were errors by the strata manager when the owner of Lot 1 was recorded as the owner of car space 9 by amendments to by-law 28 on 21 February 2014 and 10 July 2015. The error was corrected on 20 September 2017, with the dealing registered on 17 October 2017 correctly referring to the owner of Lot 2 as having the exclusive use of car space 9.

(9) A further error occurred on 29 October 2018 with the registration of consolidated by-laws prepared by Mueller, which correctly recorded the grant of exclusive use of car space 9 to the owners of Lot 1.

1. The Tribunal was not persuaded that it was in the interests of all lot owners to grant the relief sought by the Appellants and set out [97] why it so decided. That can be interpreted as the Tribunal deciding that the Appellants did not discharge the onus which they bore on the balance of probabilities. The Tribunal's findings of fact identified have not been successfully challenged by the Appellants. They provided an adequate and logical revelation of the reasons for the Tribunal's decision.
2. Importantly, the Tribunal recorded [97(2)] that there was "some force" in the Applicants' submissions that the "written consents given by the lot owners ahead of the 5 December 2025 [sic] say nothing about exclusive use of car space 9 and the wording of by-law 28 differs from that of the by-law approved by the 2023 resolution". The Tribunal considered that not to be "fatal to the resolution passed on that date, which was intended to remedy, for the fourth time, the same error that had occurred in recording the owner or owners of Lot 1 as the owner of car space 9. The minutes of that meeting make it clear that Lot 2 was to have exclusive use of car space 9".
3. The Tribunal further recorded [97(3)] that "What transpired as a consequence of inadvertence or negligence on the part of the strata manager and the Respondent's former solicitor on at least four occasions, by my count, was that the registered dealings erroneously recorded Lot 1 as having exclusive use of car space 9. The question that arises is whether this should be allowed to stand". The Tribunal also recorded [97(4)] that one of the "significant factors influencing the Applicant's purchase of Lot 1 and Lot 2 [22] was having exclusive use and enjoyment of car space 9. However, while reversing the 2023 resolution would be in their interests, the Tribunal is required by section 148(2) to have regard to the interests of all owners of lots in the strata scheme in the use and enjoyment of their lots or the common property". [97(5)] "It is, in my view, in the interests of all owners in the strata scheme for the errors that have occurred on three occasions by granting Lot 1 exclusive use of car space 9 to be corrected, and for each lot owner to have a parking space either in a garage lot or a designated space on the common property in respect of which an owner has exclusive use".
4. The Appeal Panel is not persuaded that an error on any of the bases identified in House v R has been established. The reality is that, for over 30 years, the exclusive use of the parking spaces on the common property was utilised, without apparent objection, to enable the lot owners who did not have a garage to have a parking space. The Appeal Panel cannot accept that the Tribunal at first instance either made an arbitrary decision as the Appellants contend, or that the Tribunal failed to adequately expose the process of reasoning which led to its decision. The Tribunal did not fail to have regard to any relevant matter, or take into account irrelevant matters. Its decision was not vitiated by erroneous findings of material facts. The Appellants have not made out a challenge pursuant to the last limb of House.
5. At most, the Appellants demonstrate that the Tribunal could have made a different decision. As the High Court has explained in House, that does not mean that the decision which the Tribunal made was erroneous. Having found that this challenge lacks merit, to the extent necessary, leave to appeal is refused.

1. If the Appeal Panel had not found that ground 1, in view of our rejection of ground 2, leave to appeal would be refused, and the appeal dismissed. In all the circumstances, and for the reasons recorded above, the appropriate order is to allow the appeal, set aside the orders of the Tribunal at first instance, and remit the proceedings for re-hearing. Lest there be doubt, the re-hearing of the proceedings would not be constrained by the Appeal Panel's rejection of ground 2. If the Tribunal's discretion pursuant to s 148 of the SSMA is enlivened, it would be exercised de novo at the re-hearing.

(3) The orders of the Tribunal of 29 May 2025 are set aside.

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.