Lenux v The Owners - Strata Plan No. 88786 - [2023] NSWCATAP 38 - NSWCATAP 2023 case summary

NCAT Appeal Panel|2023-02-07

Before: J A Ringrose File Number(s): SC22/21291

REASONS FOR DECISION

On 31 May 2016 the Appellant, Mr Lenux, bought lot 28 in a block of units at Mascot. The lot consists of a car space and a unit across levels 7 and 8 of the building.
At some time before 30 October 2020 Mr Lenux: 1. Enclosed the mezzanine void on level 8 by installing a floor to ceiling structure on the floor behind an existing balustrade. The lower half of the structure is a plasterboard wall and the upper half is a panel horizontal sliding window array; and 2. Installed vertical plasterboard walls in the level 7 living area to create a third bedroom.
The Owners Corporation brought an application in the Tribunal's Consumer and Commercial Division for the removal of those structures.
The Tribunal made directions for the parties to lodge and serve material. After a hearing, on 1 November 2022 the Tribunal made orders for the removal of the structures and reinstatement of the common property.
Mr Lenux has appealed from those orders.
The final order made by the Tribunal was the setting of a timetable for submissions concerning costs. The Owners Corporation has filed its submissions, but a decision has not yet been made by the Tribunal.
At the time of the hearing Mr Lenux had submitted a special by law to the Owners Corporation which, if passed, would authorise the structures. The Tribunal postponed the operation of its substantive orders for four months or until the Owners Corporation had considered the by law. Since the delivery of the Tribunal's decision, that by law has been considered and rejected by the Owners Corporation. Mr Lenux has applied to the NSW Civil and Administrative Tribunal for a review of that decision by the Owners Corporation. His application is listed for hearing next week. Mr Lenux was invited by us to adjourn these appeal proceedings until after that other application has been heard, however he chose to proceed with this appeal. We were informed by the legal representative of the Owners Corporation that the Owners Corporation will not rely on these proceedings as a defence to that application.

Outline of the Tribunal's findings

The Tribunal found that: 1. When the Council approved the building, level 8 was not considered to be a ''storey'', so it was not included in the calculations for the height of the building, which was less than 25 metres. 2. The enclosure of the void had resulted in an increase in the floor space so that level 8 became an additional "storey" and the building was now higher than 25 metres. 3. A building higher than 25 metres must comply with Building Code of Australia clause E1.5 which provides that sprinklers are required throughout the whole building. These had not been installed. 4. The structure on level 8 was affixed to the common property. 5. Section 108 of the Strata Schemes Management Act 2015 (SSM Act) provides that a lot owner can only erect a new structure on common property if a special resolution has first been passed by the Owners Corporation authorising the work. No such special resolution had been passed. 6. The third bedroom constructed on level 7 required Council approval which had not been obtained. 7. The work was not permitted by ss 109 and/or 110 of the SSM Act which set out the circumstances in which cosmetic and minor work can be done by a lot owner on common property.

Procedural issues in the appeal

Mr Lenux sought to rely on evidence which he had not put before the Tribunal. These were photographs of the renovations, and a copy of a settlement agreement between the Owners Corporation and the developer of the units dated June 2019. The Owners Corporation opposed the receipt of those documents.
Having reviewed the photographs, we consider that they depict nothing more than the description of the renovation works which we have referred to already. There were of no further assistance to us and on that basis could not be said to have produced a different result: BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]- [28]; Mielczarek v Commissioner of Fair Trading [2016] NSWCATAP 217. We refuse to admit those photographs.
In relation to the settlement agreement, it is again of no assistance to us and on that basis could not be said to have produced a different result.
Lastly, Mr Lenux objected to our reading the written submissions prepared by the Owners Corporation. They had been sent to him on 31 January 2023 in breach of direction to serve them on him by 23 January 2023.
We were satisfied that, despite the delay, the submissions should be received. In making this decision we took into account that the solicitor for the Owners Corporation said he had prepared them as soon as he received instructions and that, if the document was rejected, he would make the same submissions orally. Mr Lenux said he had received them and had chosen not to read them because they had been served late. We gave Mr Lenux the opportunity to respond orally during the hearing of the appeal. He did not seek an adjournment.
In our view there is no prejudice to Mr Lenux and, in any event he bears the onus to demonstrate that the appeal should succeed. However the late service may have a bearing in respect of any applications for costs in respect of the appeal.

Scope of the appeal

Section 80 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) relevantly provides: 80 MAKING OF INTERNAL APPEALS (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. (2) Any internal appeal may be made … (b) as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to the Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court said at [28] (citations omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.
As we have said, this is an appeal from a decision made in the Consumer and Commercial Division. Accordingly we may only go on to consider granting leave if we are satisfied that the elements of cl 12(1) of Sch 4 of the NCAT Act are made out, in that Mr Lenux may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
We agree with the Appeal Panel in Collins v Urban (supra) where it said, at [76], that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: ... [T]here was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
As Mr Lenux is unrepresented, a broad interpretation of the grounds of appeal should be allowed unless it unreasonably prejudices the Owners Corporation: Prendergast v Western Murray Irrigation Ltd [2004] NSWCATAP 69. However, there is a proper limit to this process, in that it is not the role of the Appeal Panel to draft grounds of appeal for Mr Lenux not raised, and then resolve them (ZNX v ZNY [2020] NSWCATAP 41, citing SZTOG v Minister for Immigration and Border Protection [2018] FCA 112), unless the issues go to the jurisdiction of the Tribunal or are otherwise necessarily considered to resolve the appeal.
The requirement to assist an unrepresented litigant is not unfettered. In Bauskis v Liew [2013] NSWCA 297 at [67]- [70] the Court of Appeal said in setting out principles apposite to the Tribunal and matters where neither party is legally represented, as follows (citations omitted): First, the Court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties.... Secondly, the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just... Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant... Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant...
We note the comments of McCallum JA in Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [43] that [T]here may be cases in which it is appropriate for the Court to give the correct legal construction to an arguable point poorly articulated by a self-represented litigant. However, the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point. Nothing in the construction of the NCAT Act leads us to the conclusion that this view should not apply equally to our obligations in this appeal.
We may decide to conduct a new hearing if we are satisfied that the grounds for appeal warrant it: NCAT Act, s 80(3)(a). A new hearing under s 80(3) of the NCAT Act is a hearing de novo, or "from the beginning": Yuen v Thom [2016] NSWCATAP 243 at [17]. Neither party sought a new hearing.

Appeal commenced out of time.

The appeal was not commenced within time. The Notice of Appeal should have been filed by 29 November 2022: Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4)(c).
It was filed on 1 December 2022.
We may extend the time for the filing of the Notice of Appeal: NCAT Act, s 41.
In Kelly v Szatow [2020] NSWSC 407, the Court summarised the principles that apply to an extension of time to appeal. Relevant considerations in the exercise of the discretion include the length of the delay, the reason for the delay, the strength of Mr Lenux' case and the extent of any prejudice to the Owners Corporation.
The delay was not lengthy. By way of explanation, Mr Lenux said he had posted the document to the Registry on 26 November 2022. The Owners Corporation whilst opposing an extension, did not point to any prejudice beyond the expense of responding to an appeal it did not think would be made after 29 November 2022.
The discretion to grant an extension of time is unfettered but it must be exercised judicially. It must also be exercised having regard to s 36 of the NCAT Act which provides that the guiding principle "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings": Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18].
Taking all of these matters into account we extend the date for the filing of the Notice of Appeal to 1 December 2022.

Grounds of Appeal

In some of the Grounds of his Notice of Appeal, Mr Lenux asks us to remove various reasons expressed by the Tribunal in its decision. In the context of appeals from a decision where judicial power is exercised, the principle is clear. Where the order appealed from is correct, but the reasons erroneous, the appeal will generally be dismissed because a right of appeal relates to a court's orders, not its reasons: Driclad Pty Ltd v Commissioner of Taxation (Cth) [1968] HCA 91; (1968) 121 CLR 45 at 64; Landsal Pty Ltd (In liq) v REI Building Society [1993] FCA 121; (1993) 41 FCR 421; Copperart Pty Ltd v Commissioner of Taxation (1994) 50 FCR 345; Baxter Healthcare Pty Limited v Comptroller-General of Customs [1997] FCA 131; (1997) 72 FCR 467, Marsden & Winch (Costs) [2008] FamCAFC 32 at [18], Miller v Harrington [2008] FamCAFC 150 at 125. On that basis, Mr Lenux' challenge to the Tribunal's reasons, without seeking varied orders, is misconceived.
In other Grounds of the Appeal Mr Lenux relies on events which occurred during the hearing - for example: 1. he asks us to revoke the Tribunal's acceptance of submissions made by the Owners Corporation: 2. he asks us to find that the Tribunal should not have allowed the Owners Corporation to rely on its written submissions which had been served late. 3. the Tribunal indicated that building height was a broad topic and would not be considered. However in its decision the Tribunal accepted all the allegations made by the Owners Corporation about the building height issue and chose not to accept any of Mr Lenux's "debate and discoveries" which, he says, was not fair.
On 9 December 2022 Mr Lenux had been directed to lodge with the Appeal Registry and serve by 9 January 2023: 1. all the evidence given to the Tribunal on which he intended to rely; and 2. if what happened at the hearing before the Tribunal was to be relied on in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing. Mr Lenux did not do so.
We are accordingly unable to determine the Grounds of the appeal which relate to the conduct of the Tribunal hearing in Mr Lenux' favour.
Mr Lenux also says that the Tribunal erroneously relied on an incorrect version of the Building Code of Australia. There was no evidence provided in support of the submission, nor was the correct version identified by Mr Lenux.
Mr Lenux also made submissions as to the legal operation of the Building Code of Australia. In summary he believes that unless an authority requests compliance with the Code, it has no legal effect. We consider this misstates the legal position and are not persuaded that Mr Lenux has shown that the Tribunal made an error of law in this respect.
Mr Lenux says the sections of the SSM Act referred to in the Tribunal's decision, relate to matters such as common property and Owners Corporation approval but have nothing to do with the building height issue. Of course, whether the facts as found are capable of falling within a statutory provision is a question of law. However we are satisfied that the references to the sections of the SSM Act were relevant to the findings which the Tribunal had to make. These findings were not confined to the height of the building.
Mr Lenux also submitted that the Tribunal was in error because the work on level 8 was permitted by a by law which permits the installation of a structure to prevent harm to children. Other than the by-law itself, there is no evidence before us to support this submission.
Mr Lenux says the expert reports relied on by the Owners Corporation were prepared before he installed the structures so the authors could not express an opinion about them. We accept the submission made by the Owners Corporation that the purpose of obtaining the reports is irrelevant to the determination of this appeal and was irrelevant to the determination of the application in the Tribunal below. There is also no evidence this challenge was raised at first instance and we would not allow it to be raised for the first time on appeal, when other evidence may have been called: Metwally v University of Wollongong (1985) 59 ALJR 481; [1985] HCA 28.
Mr Lenux also submits that the Tribunal erroneously interpreted the sections of the SSM Act including those which relate to minor and cosmetic work done by a lot owner. Without embarking on an analysis of the legislation in these Reasons, it is our view that it is not sufficient for Mr Lenux to merely to show that the trial judge was arguably wrong. We are not persuaded by his submissions that the Tribunal's decision is attended with sufficient doubt to warrant its reconsideration.
Mr Lenux also considers that the Tribunal was in error in concluding there had been an increase in the floor space because he had not extended the mezzanine level. That finding, at [87] of the decision, needs to be read in context with the preceding paragraphs which refer to an "enclosed" floor space, as opposed to a "void" and does not appear to be central to the Tribunal's decision. In any event, as we have said, it is not sufficient for Mr Lenux to show that the Tribunal was arguably wrong. Indeed, in relation to this issue it was clearly open to the Tribunal to accept the expert evidence and make this finding.

Decision

No issue is raised in the appeal about whether the Tribunal had the jurisdiction or power to make the orders it did. We are satisfied the decision was within both jurisdiction and power.
We have not been persuaded that Mr Lenux has shown that the Tribunal made an error on a question of law.
As we have already said, Mr Lenux can only appeal on other grounds with leave (s80(2)(b) of the NCAT Act). We decline to find that Mr Lenux has shown there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable to be determined.
Further we decline to find that Mr Lenux may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal was not fair and equitable; or 2. the decision of the Tribunal was against the weight of evidence as required by cl 12(1) of Sch 4 of the NCAT Act.

Costs

The Owners Corporation wishes to be heard separately on the question of costs.

Orders 1. The time for the filing of the Notice of Appeal is extended to 1 December 2022. 2. Leave to appeal is refused; 3. The appeal is dismissed. 4. Within 14 days of the date of these orders the Owners Corporation is to is to lodge with the Appeal Registry and give to Mr Lenux submissions in relation to any order for costs and to also address the issue as to whether there is an objection to the costs decision being determined on the papers. 5. Within 28 days of the date of these orders Mr Lenux is to is to lodge with the Appeal Registry and give to the Owners Corporations written submissions in relation to the question of costs and address the issue as to whether there is any objection to the costs decision being determined on the papers.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 February 2023

Lenux v The Owners - Strata Plan No. 88786

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