Lim v The Owners - Strata Plan No 51159

The appeal

1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) provides that an internal appeal from a decision of the kind in this appeal can be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
2. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [24]-[40], the Appeal Panel set out the principles concerning questions of law within s 80 of the NCAT Act. An appellant is required to identify a pure question of law which then becomes the subject matter of the appeal: Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan 7 Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]; Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [12] and [14] summarising Orr v Cobar Management Pty Ltd [2020] NSWCCA 220. The question of law should be articulated with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Kudrynski v Orange City Council [2024] NSWCA 33 at [48], Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [28].
3. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant 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).
4. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel 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 there 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 (a) or (b) not occurred or if the fresh evidence under (c) had been before the Tribunal.
5. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
6. Mr Lim identifies the following as the grounds of appeal which he states raise errors on a question of law: 1. The decision was procedurally unfair as it in effect permits an expert retained by the respondent to decide the issue and no such order was requested by either party. 2. The member failed to give reasons for the decision. 3. The decision was against the weight of the evidence which included a report from the appellants' expert in circumstances where the respondent had not provided any expert evidence.
7. In Cominos v Di Rico [2016] NSWCATAP 5, at [13], the Appeal Panel noted that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12] the Appeal Panel noted that where an appellant is not legally represented, it is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.
8. In such circumstances and having regard to the guiding principle in s 36 of the NCAT Act, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance.
9. Where an appellant is not legally represented, "it may be appropriate to adopt a more generous or benevolent approach" in assessing whether the grounds of appeal identify a question of law or a basis for leave to appeal: Dokas v Gallagher (No 2) [2024] NSWCA 236 at [66]
10. One of the grounds identified by the appellants concerns a denial of procedural fairness. The Tribunal is obliged to afford both parties procedural fairness: NCAT Act s 38(2). It is also to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: NCAT Act s 38(5)(c). A failure to afford a party procedural fairness is an error on a question of law: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13]. Similarly, a failure to give reasons may also be an error on a question of law. The other ground raised in the Notice of Appeal requires leave.
11. In our view, however, there is a further difficulty with the decision under appeal which we deal with below. An error on a question of law may arise if it is established there was a constructive failure on the part of the Tribunal to exercise its jurisdiction: Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]-[12] and [413].

Background

1. It was generally agreed before the Tribunal that the screen door was attached to the common property apartment entry door frame. Mr Lim stated that approval was obtained from the strata committee prior to the installation of the screen door. Neither party provided a record of any such approval being given, although the respondent did not dispute that the installation of the screen door may have been agreed to by the strata committee at the time. The respondent stated that there is no common property rights by law in existence in relation to the screen door requiring Mr Lim, for example, to maintain the door.
2. The respondent's strata manager gave evidence that during an annual fire safety inspection in 2023 the screen door was found to be non-compliant by the contracted fire safety certifier. The evidence of the respondent was that it removed the screen door in order to fulfil its obligations under s 106 of the Strata Schemes Management Act 2015 and, once the screen door was removed, the annual fire safety certificate was issued.
3. Mr Lim gave evidence that the screen door is necessary to protect his family for a variety of reasons. He also disputed that the screen door was required to be removed or that it poses a fire risk. Mr Lim was also aggrieved that the door was removed without his consent and without prior notice.
4. Mr Lim provided copies of past annual fire safety statements which did not disclose any issues with the screen door to his apartment. In support of his application to the Tribunal Mr Lim provided a report from Vincent Graham, an expert in fire safety. In an unsigned report dated 18 December 2013 (a signed copy in conformity with the Tribunal's Procedural Direction on Expert Witnesses was later provided and is dated 14 February 2024), Mr Graham states that the installation of the screen door is not complaint with the relevant Australian standard. However, he also states that the door frame itself (to which the screen door was attached) is non-compliant. In those circumstances, his opinion was that removal of the screen door did not achieve compliance with fire safety requirements. Mr Graham also stated that the screen door as previously installed swung into the path of travel leading to a fire exit which is not permissible under the relevant regulation.
5. Mr Graham made several recommendations, however, about how a screen door could be installed so that issues concerning the path of travel could be overcome to ensure compliance. He also stated that, if the door frame itself was not infilled, the screen door could be attached to the door frame. If the door frame was rectified, then he recommended attaching the screen door to the surrounding masonry.
6. Mr Graham gave evidence at the Tribunal hearing as did Mr Lim and the strata manager.

The Tribunal hearing

1. Mr Lim has provided a copy of the transcript of the Tribunal hearing.
2. At the beginning of the hearing the member asked questions of both parties in order to understand the sequence of events which led to the removal of the screen door. The strata manager gave evidence that during the annual fire inspection the contractor had advised that the screen door was non-compliant and needed to be removed before a fire safety certificate could be issued. In response to a question from the member, he advised that he did not have anything in writing to that effect.
3. The member then raised with Mr Lim that the expert report he had filed was dated 14 February 2024 which was well after the date set by the Tribunal at an earlier hearing for the filing of evidence. He then intimated that, as a result, the respondent was at a disadvantage, unless the matter could be settled that day. There then followed a lengthy discussion between the member and Mr Graham who was present in the hearing room.
4. Mr Graham said that, in his opinion, because the door frame itself was not compliant, the fact that the screen door was secured to the frame didn't "make it noncompliance because it's already noncomplying." He also stated, however, that, as it had been attached, the screen door swung into the path of travel and was an obstruction. Following further questioning from the member, Mr Graham said that, if the screen door was reinstated on the opposite side to where it was hung previously, as a matter of the exercise of the local Council's discretion, it may be deemed to comply. The strata manager expressed a view that the respondent may not wish to follow such a course and involve the Council in any inspection.
5. The member then posited that it might be possible for the contracted fire safety certifier to issue a short report and discuss the matter with Mr Graham. Another discussion between the member and the parties followed in which the member took Mr Lim to task for filing his expert report late. Mr Lim said he had filed the report in December 2023 and a supplementary version in February 2024. Mr Graham explained that he had originally provided his opinion to Mr Lim not knowing the matter was before the Tribunal and that he provided a further version for use in the Tribunal proceedings.
6. Following this discussion the member stated that at a practical level he understood what Mr Graham was saying, but said that, legally, the issue concerned the respondent's obligation under s 106 (of the Strata Schemes Management Act) to maintain and repair the common property. The member again referred to the contracted fire safety certifier and the fact that the respondent had not provided any report in writing from the contractor to the effect that the screen door was non-compliant. The member then proposed that Mr Lim withdraw his application if the strata manager was to provide him with "a two paragraph report" that the screen door was non-compliant. Mr Graham asked if any report could also provide a view based on the proposition that the screen door could swing the other way, which in his view would mean it did not impede the path of travel in the case of a fire. A 10 minute adjournment followed to give the strata manager an opportunity to seek instructions.
7. Following the adjournment, the strata manger advised that the respondent had agreed to obtain the report. There was then some discussion about whether Mr Lim could obtain a "special privilege" by-law with respect to any screen door installed at the entrance to the apartment. There was also further discussion between the member, Mr Lim, Mr Graham and the strata manager concerning methods to make the screen door compliant, although Mr Graham repeated his contention that because the fire door itself was non-compliant, the screen door did not affect compliance. The strata manager said the respondent would obtain a report from an independent fire expert, rather than the contractor.
8. After some time following further discussion, the member drafted the orders as set out above, having also dealt with Mr Lim's costs application which he dismissed.
9. Near the conclusion of the hearing Mr Lim asked if the matter was adjourned pending receipt of the report from the respondent. The member replied that there was no adjournment as the application was withdrawn. He then advised that Mr Lim could seek to renew the proceedings if the respondent's expert had not been provided with a copy of Mr Graham's report (this having been a point of discussion between the parties and the member). The hearing then concluded.

Consideration

1. We note that the respondent provided us with a copy of the report it had obtained in compliance with the orders of the Tribunal but did not seek to rely upon the contents of that report in any way. This report was not, of course, before the Tribunal and we have not had regard to it.
2. The issues which were before the member as raised in the Lims' application to the Tribunal were: 1. whether the respondent had acted within its powers under the Strata Schemes Management Act in removing the screen door without notice to the Lims; 2. whether the screen door should be reinstated; and 3. whether the Lims were entitled to their costs of the proceedings.
3. No issue has been raised on the appeal in relation to the member's decision not to award costs. We note that in respect to the decision to refuse costs, the member provided oral reasons at the time. The primary issues before the Tribunal were, of course, (a) and (b) above.
4. It is fair to say that the hearing before the Tribunal proceeded in a somewhat unorthodox manner. While the Tribunal can determine its own procedure, is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, it must act in accordance with the rules of procedural fairness: s 38 NCAT Act. NCAT Act. In addition, the Tribunal is to take such measures as are reasonably practicable to ensure that the parties to the proceedings before it understand the nature of the proceedings: s 38(5) NCAT Act. The Tribunal may, where it considers it appropriate, use resolution processes in order to achieve a settlement or narrow the issues: s 37.
5. The hearing before the Tribunal proceeded as a relatively unstructured discussion between the member, the parties and the expert, Mr Graham. It is clear that the member was of the view that Mr Graham's report had not been filed with the Tribunal and served on the respondent in accordance with the timetable for the exchange of evidence that had been set previously. He therefore was of the opinion that the respondent was at a disadvantage unless the matter could be settled that day. What followed appears to be an attempt by the member to achieve a settlement. However, at no point did he advise the parties that he was doing so and that he was not, at that stage at least, formally hearing the matter.
6. Mr Lim raises issues on the appeal about the member being in error when he said that the report of Mr Graham was filed out of time. On the appeal, the respondent concedes that it received the report in December 2023, as did the Tribunal, with a further version in compliance with the Tribunal's Procedural Direction on Expert Evidence being filed on 14 February 2024. The substance of the reports is the same. The member was in error in that the expert report was in fact first filed in December 2023 and it is not clear from the transcript whether he was later satisfied by the explanations of both Mr Lim and Mr Graham that the report had been filed in time. In our view it does seem that this error coloured the approach the member took to the matter in his attempts to achieve a settlement.
7. We are not satisfied, however, that this error in and of itself forms a ground upon which we should allow the appeal. The member gave great latitude to Mr Graham who was able to put forward his expert opinion. The transcript makes plain that the member also accepted the evidence of the respondent's strata manager that its contracted fire safety certifier was of the opinion that the screen door was not compliant. The member was therefore left with the conflicting opinions of the two experts (although there was nothing in writing from the contractor and he was not present at the hearing).
8. Having said that the discussion at the hearing was unstructured, we do note that part way through the hearing in a discussion with Mr Lim, the Tribunal member referred to s 106 of the Strata Schemes Management Act. We understand from his reference to that section, which provides that an owners corporation must properly maintain and keep the common property in a state of good and serviceable repair, that the member was of the view that the owners corporation was responsible for repair or maintenance of the screen door. The next statement he made was "And where the fire, the third party inspector says you have to repair this, I am [unintelligible 00:34:44]." Unfortunately, the transcriber was unable to record fully what the member said. It is at this point the member first refers to permitting the respondent to obtain a report from the contracted fire safety certifier in order to satisfy Mr Lim that the screen door was non-compliant. This ultimately led to the orders that were made.
9. Before we turn to the grounds of appeal, it is worth setting out the legislative provisions that apply to the alteration of common property in a strata scheme. Section 108 of the Strata Schemes Management Act deals with changes to common property and provides that a lot owner may add to the common property, or alter the common property or erect a new structure on common property for the purpose of improving the common property. Before doing so, however, the permission of the owners corporation must be obtained by the passing of a special resolution at a meeting of the owners corporation. There are certain exceptions to the requirement for a special resolution under s 108 - cosmetic works under s 109 of the Strata Schemes Management Act and minor renovations under s 110 - but neither of these provisions are applicable in this case.
10. A by-law may be made if the lot owner is to be responsible for the ongoing maintenance of the common property as altered or added to: s 108(5). If the lot owner is requesting exclusive use, enjoyment, or special privileges over common property this will also involve the passing and registration of a common property rights by-law: see s 142 of the Strata Schemes Management Act. In circumstances where a special resolution under s 108 does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has the responsibility for the ongoing maintenance.
11. Assuming that consent to install the screen door was given to the Lims some 30 years ago, in the absence of any by-law, maintenance of the screen door therefore is the responsibility of the owners corporation. This seems to be the view reached by the member as alluded to in his discussion with Mr Lim, as mentioned above, of s 106 of the Strata Schemes Management Act, although he does not make any finding to that effect. We note that the screen door was attached to the common property and there was no common property rights by-law in place in respect of the door.

Procedural fairness ground

1. The member gave each of the parties ample opportunity to express their views and put forward their arguments. In that sense the hearing was procedurally fair. However, the way the hearing proceeded was confusing and the member made no distinction between whether he was acting as a conciliator/mediator or hearing the application. It is apparent from the transcript that Mr Lim was unaware that by agreeing to the orders proposed by the member the matter would be finalised. His questions to the member about an adjournment for the respondent to obtain the report from an expert strongly indicate that. There is no reason to believe that Mr Lim would act against his own interests.
2. More concerning, although he ultimately made no formal order in this regard, the member said on more than one occasion that the application had been withdrawn. At no point did Mr Lim state that he was withdrawing the application or consent to any proposal that he withdraw the application. Indeed, all his statements at the hearing were in conformity with his desire to pursue his application.
3. We do not consider that the hearing was procedurally fair. This appeal ground is made out.

Adequacy of reasons

1. A notation to the orders made on 26 February 2024 states that oral reasons were given for the decision.
2. We accept that adequate oral reasons were given for the decision to refuse Mr Lim's costs application. However, we cannot discern from the transcript that the member provided reasons for his ultimate decision to require the respondent to obtain an expert report. There are several statements made by the member during the course of the hearing from which we might infer certain reasons for why he took the course he did. Requiring a party to infer or guess at why a particular decision was made does not amount to the giving of adequate reasons.
3. This ground of appeal is also made out.

Constructive failure to exercise jurisdiction

1. We are of the view that a more fundamental error was made by the member in determining the Lims' application. As was stated by Buss JA in Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227 at [65], a purported, but misconceived and inadequate, attempt by an administrative tribunal or body properly to hear and determine a matter in accordance with the applicable statute may constitute a constructive failure to exercise its jurisdiction. Gaudron J explained in Re Minister for Immigration and Multicultural Affairs; Ex parte Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 339: … there is said to be a "constructive failure to exercise a jurisdiction" when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form.
2. In Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165 at [6] Basten JA said: The premise underlying a "constructive" failure to exercise jurisdiction is that there has been an apparent exercise of the jurisdiction of the court, but one that has failed in a way which can only be teased out by reference to the underlying issues and the materials presented to the court. It may then be demonstrated that a material issue presented for determination has not been resolved.
3. As noted above, the primary issues before the Tribunal were whether the respondent acted within its powers in removing the screen door and whether the door could be reinstated. In doing so, the Tribunal was required to exercise its powers under the Strata Schemes Management Act. Under s 232 of that Act the Tribunal has a broad order making power to settle a dispute or complaint.
4. The member correctly identified that the primary issue before the Tribunal concerned the respondent's obligations under s 106 of the Strata Schemes Management Act. However, the Tribunal made no findings or orders which dealt with:

• whether the respondent had consented to the installation of the screen door in the first place;
• if consent had been given, who had responsibility for maintenance and repair of the screen door; and
• whether, in conformity with its obligations under s 106, the respondent was entitled to remove the screen door.

1. At its highest it could be said that it may be inferred from the member's comments during the hearing that he was of the view the respondent had acted in accordance with its obligations under s 106. No finding or order, however, was made concerning this fundamental issue.
2. The orders made by the member deal only with the respondent obtaining a report from an expert as to whether the screen door could be deemed to be compliant if it was hung on the left side rather than the right side of the door frame. The expert was also ordered to inform the parties as to whether, if the screen door was removed, the door frame itself could then be deemed compliant.
3. In our view it was not the role of the Tribunal to require the respondent to provide an expert report which, in essence, would provide advice on whether there was a way to make the screen door compliant with fire safety regulations. We say this because the Strata Schemes Management Act sets out a process whereby an owner can seek approval to make additions or alterations to common property. It must be borne in mind that the screen door had in fact been removed and was not sought to be reinstated in exactly the same manner as it had previously been installed. Mr Lim's own expert, Mr Graham, did not propose that as a solution to the issue as he in fact acknowledged that the screen door was non-compliant.
4. The powers of the Tribunal in relation to approving alterations or repairs by an owner to common property directly affecting the owner's lot are only enlivened if the Tribunal considers that the owners corporation unreasonably refused its consent to the alterations or repairs: s 126(2) Strata Schemes Management Act. Mr Lim had not sought such consent from the respondent, which would require a special resolution, and the issue was therefore not before the Tribunal. Making an order requiring the respondent to obtain expert advice was unnecessary and demonstrated a misunderstanding of the Tribunal's powers and functions under the Strata Schemes Management Act.
5. While the orders made by the Tribunal state that the respondent "agreed" to provide an expert report, the orders do not state they were made by consent of the parties and, as set out above, we are not satisfied that Mr Lim understood that the orders would finalise the proceedings or consented to such a course. In any event the orders as made could not be said to be dispositive of the proceedings under the Strata Schemes Management Act as they do not determine the issues that were before the Tribunal. In that regard, we note that the member's statements to Mr Lim at the hearing that he could seek to renew the proceedings if the order to obtain a report was not adhered to by the respondent are, with respect, difficult to understand. It is not at all clear what order the Tribunal could make upon a renewal of the proceedings in circumstances where no findings were made on the facts and no orders were made on the issues actually in contention. As Mr Lim stated at the appeal hearing, there was no real basis for the making of the orders and the orders, in effect, delegated the Tribunal's decision making function to an expert retained by the respondent.

Disposition of the appeal

1. We have decided that the Tribunal made several errors in making the decision that it did. In normal circumstances that would lead to us to allow the appeal and remit the matter to the Tribunal to be determined again. However, there is no practical utility in doing so for the following reasons.
2. The screen door was clearly attached to common property and did not form part of the Lims' lot. No ordinary by-law or common property rights by-law was made in respect of the screen door and maintenance and repair were therefore the responsibility of the owners corporation. It is the responsibility of the owners corporation to ensure that the screen door (and other parts of the common property) complies with the fire safety regulations in circumstances where it is notified that it does not. The owners corporation was advised by its contracted fire safety certifier that the screen door was non-compliant. We note that, even though no issues were raised about the screen door in past fire safety inspections, that does not mean that the screen door was and/or remains compliant today.
3. Mr Lim's own expert, Mr Graham, states that the screen door as it was installed was not compliant. The screen door has been removed and it is not open to the owners corporation to reinstall the door in the same manner as it was previously, as that would be a breach of the fire safety regulations and not in keeping with its obligations under s 106. Indeed, Mr Graham also does not recommend such an installation but does make recommendations about how compliance may be achieved. If that is the case and one of his recommendations or perhaps another solution can be found to render a screen door complaint, this would result in a new alteration to the common property. In that case is open to Mr Lim to seek a special resolution from the owners corporation and a common property rights by-law with respect to a screen door which may be compliant. If he is unsatisfied about the outcome of any such application to the owners corporation, he may then pursue a remedy initially through mediation and then the Tribunal.
4. The resources of the Tribunal, should a decision of the owners corporation about the installation of a screen door not be favourable to Mr Lim, would be better allocated to a live dispute rather than one where any decision of the Tribunal on the current application to reinstate the screen door, if the matter was remitted to the Tribunal for reconsideration, would amount to an advisory opinion only. As was stated by the Appeal Panel in Davis v NSW Minister for Health [2023] NSWCATAP 211 at [45], applying what was said in Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299: It is no part of the role of this Tribunal to give advisory opinions on issues which have become hypothetical questions or to use resources resolving proceedings the utility of which is either wholly lacking or extremely limited. That would be an improper use of the Tribunal's limited resources.
5. For these reasons and in light of our obligation to consider whether permitting the proceedings to continue facilitates "the just, quick and cheap resolution of the real issues in the proceedings", as set out in the guiding principle in s 36(2) of the NCAT Act, the appeal is dismissed.
6. We note that Mr Lim sought his costs of the appeal. In the circumstances we make no order as to costs.

Orders 1. Appeal dismissed. 2. No order as to costs.

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: 21 January 2025