Lynne Maree Worral v The Owners - Strata Plan No. 43357 - [2022] NSWCATAP 104 - NSWCATAP 2022 case summary

NCAT Appeal Panel|2022-03-03

REASONS FOR DECISION

By Notice of Appeal filed on 14 October 2021, Lynne Maree Worral (the Appellant) appealed against a number of orders made by the Consumer and Commercial Division of the Tribunal on 16 September 2021. The Owners - Strata Plan Number 43357 (the Respondent), by Amended Reply dated 7 February 2022, resisted the Appellant's appeal and sought to maintain the decision of the Tribunal at first instance.
The orders of the Tribunal at first instance provided that, pursuant to s 232 of the Strata Schemes Management Act 2015 (NSW) (the SSMA): 1. the Respondent carry out remedial work as set out in a joint expert report with respect to cavity flashing; 2. the Respondent undertake remedial work, in cooperation with the Appellant, with respect to inadequate drainage and fall of the roof terrace within the Appellant's Lot; 3. that the Respondent be responsible for the rectification of that part of the roof terrace which does not form the roof of the balcony to the Appellant's Lot; 4. the parties be granted liberty to apply for directions in the event that the parties could not agree on the appropriate allocation of the costs of rectification of the inadequate drainage and fall of the roof terrace within the Appellant's Lot; and 5. that the Appellant's application be otherwise dismissed.
The Appellant challenged the making of orders 3, 4, 6, 7 and 8. The Appellant sought that orders 3, 4, 6, 7 and 8 be set aside, and that the Respondent be responsible for the cost of the rectification works ordered by the Tribunal at first instance.
Orders 6, 7 and 8 were directions with respect to applications for costs of the proceedings at first instance, and have been stayed pending the determination of the present appeal.
The Appellant does not challenge the orders of the Tribunal at first instance with respect to the nature or extent of rectification work to be carried out, but seeks orders that the Respondent be responsible for the totality of the costs of that work.
So far as the orders for costs of the proceedings below are concerned, no ground of appeal articulated by the Appellant suggests that such orders were erroneous in law. The Appellant's Notice of Appeal did not seek a grant of leave to appeal against those orders. The orders having been stayed, we perceive no impediment to the parties agitating the question of costs at first instance in the light of our decision with respect to the appeal, and reasons for that decision. The terms of the cost directions of the Tribunal at first instance can cover either of the possible outcomes of the appeal. It is accordingly unnecessary for our reasons to do other than engage with the three grounds of appeal agitated by the Appellant, which are concerned with the liability for the costs of rectification work, the nature and extent of which is not in dispute.

The Appellant's "new" evidence

In her submissions in reply (57), the Appellant asserted that "new evidence has arisen in the form of plans submitted by the owner of Lot 50 to the Owners Corporation to be considered in the context of approving Special By-Law 33". Attachment 1 to the Appellant's submissions in reply was a "witness statement of David Anthony Worral" comprising 31 paragraphs, together with a number of annexures. Mr Worral apparently holds a Power of Attorney for the Appellant.
The Appellant made no application for leave to rely upon the asserted "new evidence". Although the Respondent took that point, properly, the Respondent's resistance to the receipt of "new evidence" was more reliant upon matters of substance than of form. It ought not be thought that our focus on matters of substance should be seen as condoning the practice of simply seeking to rely upon "new evidence" in an appeal, without making any application for leave to do so.
Having heard appropriately brief submissions from the parties with respect to the issue, the Appeal Panel deliberated, and informed the parties that the Appellant would not be permitted to rely upon the "new evidence" contained in the statement of Mr Worral, and that we would provide our reasons for so deciding when publishing our reasons in the appeal. These are our reasons for refusing to receive the "new evidence".
Not infrequently in appeal proceedings, the terms "new", "fresh", "further" and "additional" evidence are used almost interchangeably. Care needs to be taken when categorising evidence which was not before the Tribunal at first instance, which is sought to be relied upon on appeal. There is, we perceive, a material distinction in this regard between appeals from decisions of the Consumer and Commercial Division of the Tribunal, and decisions of other Divisions of the Tribunal, as the discussion in Ros v Commissioner of Police [2020] NSWCATAP 70 (Ros) at [27]-[35] is suggested to make clear.
Section 80(3)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) enables an appeal panel to receive "fresh" evidence when an internal appeal, which this appeal is, proceeds by way of a "new hearing" pursuant to s 80(3)(a) of the Act. There has, sensibly in our view, been no application for the present appeal to proceed by way of new hearing.
Although described as an application for leave to rely upon "new evidence", we perceive that, in order to rely upon "new evidence", the Appellant required, and informally sought, a grant of leave under s 80(2)(b), which provides that 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."
In our view, the present application fell to be considered by reference to the provisions of Schedule 4, cl 12, to the CAT Act, which relevantly provides: "(1) An Appeal Panel may grant leave under s80(2)(b) of this Act for an internal appeal against a division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because - … (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)."
The requirements of Schedule 4, cl 12(1)(c) are that the "new evidence" is "significant" and was "not reasonably available at the time the proceedings under appeal were being dealt with."
Other than "clarification" of aspects of the evidence before the Tribunal at first instance, the asserted significance of the new evidence was not explained. Even if the requirement of significance were satisfied, in our view a fatal impediment to receipt of the "new evidence" was the fact that it was clearly, as the terms of Mr Worral's statement make clear, "readily available" at the time the proceedings at first instance were being dealt with.
In Lauron v Michael [2021] NSWCATAP 120 ("Lauron"), an appeal against a decision of the Consumer and Commercial Division of the Tribunal, under the heading "Fresh Evidence", the Appeal Panel considered some of the principles governing the receipt of such evidence on appeal (at [21]-[32]) in the light of the authorities to which the panel referred.
The Appeal Panel in Lauron did not expressly refer to the provisions of Schedule 4, cl 12 to the CAT Act, which refers to "new evidence" rather than "fresh evidence". For present purposes little turns on the difference, if there be any of substance, between "new" and "fresh" evidence. The authorities discussed by the Appeal Panel in Lauron are, however, considered to be instructive for present purposes, and to support our rejection of the proposed "new evidence" in this appeal.
The provisions of Schedule 4, cl 12(1)(c) accord closely with the criteria for admission of "new" evidence which emerge from longstanding authorities (Timmons v Timmons (1919) P75, Colchester v Peck (1926) 2 KB 366). In Lawless v The Queen (1979) HCA 49; (1979) 142 CLR 659, the High Court reiterated that evidence of which a party could reasonably have been expected to have become aware, and been able to produce at the hearing, will not be "fresh evidence".
In Minister for Immigration and Multicultural Affairs v Madafferi [2001] FCA 250 (2001) 106 FCR 76, the Full Court of the Federal Court of Australia (at [30]) identified the two requirements for the exercise of discretion to receive "fresh evidence" under s 27 of the Federal Court of Australia Act 1976 (Cth) which were that the evidence "would not have been available at the initial hearing despite the exercise of reasonable diligence and that if the evidence had been available there was at least a firm chance that the result would have been different".
Nothing to which we were referred on behalf of the Appellant established that, if received, the "new evidence" sought to be relied upon by the Appellant would have "at least a firm chance" of producing a different result.
Although not involving an appeal from a decision of the Consumer and Commercial Division, the Appeal Panel in Ros recorded (at [33]) that whether it is "likely" that the further evidence would have produced a different result at the first instance hearing before the Tribunal was "relevant" in determining whether it should be admitted. It was further held that, whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion may also be relevant.
However approached, nothing to which we have been referred established that the "new evidence" was either "significant" in the relevant sense, or "not reasonably available at the time the proceedings under appeal were being dealt with".

The reasons of the Tribunal at first instance

In view of the complexity of the issues raised in the submissions of the parties, detailed reference to the reasons of the Tribunal at first instance is necessary.
The Tribunal recorded ([6]), accurately, that "At the hearing the parties were agreed that the agreed scope of works needed to be carried out. They disagreed as to whether the Owners Corporation was responsible for carrying out the work".
The Tribunal referred ([7]) to the registration of the Strata Scheme in 1993, and to the four penthouse units created by the Strata Plan, Lots 47 to 50 (Lot 50 being the Lot owned by the Appellant), each of which included a balcony on Level 12 and part of the roof deck on Level 13 ([8]). The latter was originally only accessible from the common property fire stairs. The Tribunal recorded ([8]) that "over time property rights by-laws have been passed by the Owners Corporation which enabled the owners of Lots 47 to 50 to construct a direct means of access between their balconies on Level 12 and their respective parts of the roof deck on Level 13".
The Tribunal referred to Special By-Law 32, by which the owners of the penthouse Lots were able to directly access their respective parts of the roof deck. Special By-Law 33, which related to Lots 49 and 50 provided, in substance ([9]): "That the owners [of the relevant Lot or Lots] are granted the right to exclusive use of that area of common property being the concrete slab which forms the roof of the balcony of the Lot and the floor of the roof terrace above, shown on the Strata Plan as part of the Lot, for the specific purpose of building a metal Spiral Staircase, partially enclosed by a Polycarbonate screen, penetrating the concrete slab to permit access to the Roof Terrace from Balcony of the Lot subject to the following terms and conditions."
The terms and conditions imposed by each by-law included: "(e) that the lot Owners shall maintain and keep the structure and any common property the subject of the exclusive use referred to herein, in a state of good and serviceable repair and shall comply with any reasonable request from the Owners Corporation to carry out repairs or maintenance to the structure and common property."
Prior to the Appellant's acquisition of Lot 50, a spiral staircase had been constructed between the balcony on Level 12 and the roof terrace on Level 13 within Lot 50. The staircase is "located directly adjacent to the edge of the roof terrace, a short distance from the southwest corner of the terrace" ([13]). The Tribunal recorded that "part of the roof terrace within Lot 50 is covered by a tile roof which was generally referred to in the evidence as an "awning"" ([14]). The Tribunal identified the three elements of the building work requiring rectification according to the expert evidence ([15]). Those findings are not controversial in the appeal.
The Tribunal at first instance recorded the Appellant's contention that the Respondent was responsible for all the work which the experts agreed was necessary and had, in breach of its obligations pursuant to s 106 of the SSMA failed to carry out that work ([16]).
The Tribunal set out the terms of s 106 of the SSMA ([17]) which, by s 106(7), provided that the obligation of an Owners Corporation pursuant to the section was "subject to the provisions of any common property memorandum adopted by the by-laws for the strata scheme under this Division, any common property rights by-law or any by-law made under s 108".
The Tribunal recorded the contention of the Respondent with respect to repairs to the awning, the repair and maintenance of the concrete slab constituting the roof terrace and rectification of cavity flashing as being the obligation of the Appellant rather than of the Respondent.
The Tribunal identified ([21]) the need to determine whether it was the Respondent or the Appellant who was responsible for the cost of each "building element" which the experts agreed is necessary. The Tribunal first considered "the awning" ([22]-[40]), and identified the first issue for determination in that regard being "whether the awning is, or is not, common property" ([22]).
The Tribunal referred ([23]) to s 5(1) of the Strata Titles Act 1973 (NSW) (Strata Titles Act), which was in force at the time of the registration of the Strata Plan in 1993, and the definition of "floor plan" contained in it, which included reference to "cubic space" as more particularly there defined. The Tribunal referred ([24]) to s 5(2) of the Strata Titles Act which relevantly provided that the boundaries of any cubic space referred to in the definition of "floor plan" in s 5(2) of the Act are: "(a) … (i) in the case of a vertical boundary, where the base of any wall corresponds substantially with any line referred to in paragraph (a) of that definition - the inner surface of that wall, and (ii) are, in the case of a horizontal boundary, where any floor or ceiling joins a vertical boundary of that cubic space - the upper surface of that floor and the under surface of that ceiling, or (b) are such boundaries as are described on a sheet of the floor plan relating to that cubic space (those boundaries being described in the prescribed manner by reference to a wall, floor or ceiling in a building to which that plan relates or to structural cubic space within that building)."
At first instance, the Appellant relied upon the reference on the Strata Plan to a notation that "the stratum of the terraces where not covered is restricted to 2.5 metres above the upper surface of their respective floors" ([25]), and submitted that such notation was "normally the way the upper horizontal boundary of a part of a lot which is not covered by any structure is defined" ([26]).
The Appellant thus submitted ([27]) that the notation on the Strata Plan defined the "upper horizontal boundary of the roof terrace except where it was covered by a structure" and that, where the terrace was covered by a structure, by virtue of s 5(2)(a)(ii) of the Strata Titles Act the Lot "was defined by the point where the ceiling of that structure joined a vertical boundary of the area".
The Appellant was recorded ([28]) as having submitted that "the part of the rooftop terrace beneath the awning is clearly covered by the awning within the meaning of the notation on the Strata Plan. This means that the upper horizontal boundary of the rooftop terrace where it is covered by the awning is the under surface of the ceiling or roof of the awning".
The Appellant was considered to have "submitted that the awning was therefore common property and that the responsibility for repairing the awning lay upon the Owners Corporation". The Owners Corporation was recorded as submitting that "the awnings contained within the airspace of the Lot do not appear to be on the Strata Plan as common property and they only serve and benefit Lot 50" ([31]). The Respondent further submitted that the notation on the Strata Plan relied upon by the Appellant "does not have the effect of excluding the awning, which the Owners Corporation submitted was located within that 2.5 metre airspace" ([32]).
The Respondent relied upon the Common Property Memorandum which the Owners Corporation had adopted as part of the by-laws pursuant to s 107 of the SSMA ([33]). The Common Property Memorandum provided that Lot owners were responsible for maintenance, repair or replacement of: "1(a) awnings, decks, pergola, privacy screen, louvres, retaining walls, planter walls, steps or other structures within the cubic space of the balcony or courtyard and not shown as Common Property on the Strata Plan".
The Owners Corporation submitted that the awning was "within the cubic space of the balcony or courtyard" and was not shown as common property on the Strata Plan ([34]).
The Appellant's response to that contention ([35]) was that clause 1(h) of the section of the Common Property Memorandum listing the Owners Corporation's responsibilities for maintenance, repair or replacement included "awnings within common property outside the cubic airspace of a balcony or courtyard", and submitted that this provision reinforced the duty owed by the Respondent under s 106 of the SSMA to maintain and repair the awning's roof.
Under the heading "Consideration" the Tribunal exposed the process of reasoning which led to its decision with respect to this issue. The Tribunal recorded ([36]) that "The evidence tended to suggest that the awning on the roof terrace of Lot 50 had been there at the date of registration of the strata plan", and that neither party had submitted otherwise. As such, as submitted by the Appellant, the Tribunal found that "the area occupied by the awning was "covered" within the meaning of the Strata Titles Act. In consequence the limit of Lot 50 was "the underside of the ceiling of the awning and the awning above that ceiling therefore constitutes common property".
The Tribunal recorded ([37]) that the Common Property Memorandum "Allocates the responsibility for maintenance and repair of the awning to the Lot owner", and that the Appellant "did not seek to establish that the awning was "outside the cubic space" of the courtyard, in the sense that it was more than 2.5 metres above the upper surface of the floor". The Tribunal recognised ([38]) that it "might be argued that the "cubic space" of Lot 50 excluded the area above the lower surface of the ceiling under the awning, as that was the boundary of the Lot".
That interpretation was held to "render irrelevant or superfluous" the inclusion of item 1(a) within the list of Lot owners' responsibilities in the Common Property Memorandum ([39]). The Tribunal found that the "clear intention of the Common Property Memorandum is to impose upon Lot owners the responsibility for maintenance of awnings on balconies and terraces within the height limit fixed as the upper limit of the cubic space for areas which are not covered". The Tribunal accordingly concluded ([40]) that "responsibility for rectification of the roof of the awning falls upon the Applicant and it is not appropriate to make an order requiring the Owners Corporation to rectify the roof of the awning."
The Tribunal then considered ([41]-[46]) the cavity flashing within the wall between Lots 47 and 50. For the reasons revealed in those paragraphs, the Tribunal ordered that the Respondent was liable for and should undertake the works agreed to be necessary to rectify the defective cavity flashing in the wall between Lots 47 and 50. That finding favoured the Appellant, and has not been challenged by the Respondent. Further reference to this issue is unnecessary in those circumstances.
With respect to the "ponding on the roof deck", the Tribunal considered the competing contentions of the parties ([47]-[62]), and recorded that it was "not in dispute that the concrete slab and tiling floor of the roof area constituting part of Lot 50 is common property", the issue being whether, pursuant to the terms of Special By-Law 33, the responsibility for the maintenance and repair of that part of the common property falls upon the Applicant.
The Tribunal at first instance ([48]) rejected the contention of the Appellant that the fact that the Respondent had carried out repair work on the roof terrace in the past impacted on the dispute which it was required to determine.
The Tribunal recorded the Respondent's contention that Special By-Law 33 "imposed the obligation to maintain the entirety of the floor, including the slab beneath it" on the Appellant ([50]) or, in the alternative ([51]), that "the works carried out in relation to the installation of the spiral staircase had affected the drainage on the roof terrace and that By-Law 33 required the Applicant to rectify any damage caused by the construction of the spiral staircase".
The Respondent was recorded as relying upon the evidence of one of the experts ([52]) that the "perimeter drainage channel has been cut off by the spiral staircase construction and has insufficient slope". The Tribunal recorded the concession by Mr Lee that he "did not have the information necessary to comment whether the falls on the roof deck were affected by the construction of the spiral staircase by a previous owner of Lot 50" but maintained that he could "say that at the time of the installation of the spiral stairs, some adjustment to the levels have occurred locally to prevent water running down the stairs". The Tribunal reiterated the agreement between the experts that "the appropriate scope of repair of the terrace drainage was to relevel the deck, to install an additional drain to the deck, to direct downpipes to drain near the outlets and to construct a landing to the spiral staircase".
The Tribunal found ([55]) that it was "not strictly necessary to determine whether the installation of the spiral staircase is responsible for any of the ponding on the roof terrace" but that only one "area of ponding" could "possibly have been affected by the works involved in the installation of the spiral staircase".
The Tribunal referred to the submission of the Appellant in reliance upon the wording of Special By-Law 33.2 "for the specific purpose of building a metal spiral staircase partially enclosed by a polycarbonate screen penetrating the concrete slab" in support of her contention that the obligation of maintenance and repair which the by-law imposed upon her was limited to the spiral staircase which had been constructed pursuant to it ([56]).
In reliance upon that phrase, the Appellant submitted ([57]) that "an exclusive use right to penetrate the concrete slab for the purpose of installing a spiral staircase could not be intended to impose upon the owner of Lot 50 the obligation to maintain the entirety of the slab so penetrated".
The Tribunal referred ([58]) to the statement of Allsop P (with whom Basten and Young JJA agreed) in Stolfa v Hempton [2010] NSWCA 218 at [30], in relation to the degree of specificity required in a resolution authorising alterations to common property, in which His Honour said: "It will be a question of fact or mixed fact and law in each case whether any given special resolution or special resolutions is or are adequate in its or their specificity of authorisation and in its or their particularity as to the action proposed. There is obviously a clear policy in requiring direct and specific attention to the proposed action; at the same time, an overly pedantic attention to detail might frustrate otherwise clear authorisation. Common sense and reasonableness have their part to play in the operation of a provision intended to regulate how people go about dealing with the common property in their units in everyday life."
The Tribunal recorded the submission of the Appellant that "The works to install the spiral staircase have nothing whatsoever to do with the original defective gradient of the terrace and insufficient drainage causing the ponding" ([59]). The Tribunal recorded the Respondent's reliance upon the wording of subparagraph (e) of the by-law describing the obligation of maintenance and repair as being in respect of "the structure and any common property the subject of the exclusive use referred to herein" ([60]). The Respondent submitted ([61]) that: "In circumstances where the penetration of the slab had potential waterproofing and structural consequences, it was not an absurd conclusion that an exclusive use right to penetrate the concrete slab for the purpose of installing a spiral staircase should impose upon the lot owner receiving the exclusive use, the obligation to maintain the entirety of the slab so penetrated."
The Tribunal at first instance recited extensively from the Judgment of Darke J in The Owners Strata Plan Number 2245 v Veney [2020] NSWSC 134 ("Veney") at [31]-[32]. By reference to the 9 "propositions" recorded by McColl JA in The Owners of Strata Plan Number 3397 v Tate [2007] NSWCA 70 [2007] NSWLR 344 ("Tate"), His Honour found ([32]) that in ascertaining the meaning of a special by-law "it is necessary to consider the language of the by-law, viewed in the statutory context in which it was made; and whilst recourse to surrounding circumstances may be permissible as an aid to construction it is necessary, particularly bearing in mind the public purpose of strata scheme by-laws, to exercise caution in going beyond the language of the by-law itself and its statutory context".
Under the heading "Consideration", the Tribunal found that the "answer" to the issue lay in the specific terms of the grant of the exclusive use right, which was "the right to exclusive use of that area of common property being the concrete slab which forms the roof of the balcony of the lot and the floor of the roof terrace above" ([63]). The Tribunal held that the concrete slab which formed the roof of the balcony of Lot 50 was "limited to the area outside the internal area of Lot 50 on Lot 12" and that it was "only that part of the slab which is directly above the balcony which could be said to form "the roof of the balcony" ([64]).
The Tribunal held ([65]) that the "grant of an exclusive use right "for the installation of a spiral staircase does not limit the area in respect of which the Applicant was granted exclusive use". The Tribunal further held ([66]) that by "obtaining an exclusive use right in respect of the slab which formed the roof of the balcony and floor of the terrace, a condition of which was that the owner for the time being of Lot 50 maintain the area subject to the exclusive use right, the owner of Lot 50 accepted an obligation to maintain that area", and that ([67]) as the exclusive right "extends to the entirety of the area which constitutes the roof of the balcony, the Applicant is obliged to maintain and repair the entirety of that area".
The Tribunal held ([70]) that the Applicant's "construction of a landing to the spiral staircase" constituted repair of the part of the deck for which the Appellant was responsible. The Tribunal held, for the reasons which it there recorded, that it would be "appropriate that the cost of rectification work be shared by the parties in proportion to the respective areas involved" ([71]). Order 4 of the Tribunal's Orders facilitated that issue being further agitated if the parties were unable to reach agreement in the terms suggested by the Tribunal ([71]-[72]).

Principles governing the appeal

The principles governing the appeal are not in doubt, and require only brief reiteration. In order to succeed with her appeal, the Appellant must demonstrate error with respect to a "question of law" (s 80(2)(b) CAT Act).
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.

Ground 1

Ground 1 asserted that: "1 At paragraphs 37 and 39 of the [sic] Decision the Tribunal erred in law in finding that a common property memorandum is able to: A "allocate the responsibility for maintenance and repair" of common property and/or B "impose upon lot owners the responsibility for maintenance" of common property" [sic]. 2 A common property memorandum is made by a special resolution as a by-law. A by-law may only pass across repair and maintenance obligations of the common property in the event that the by-law is made pursuant to s 108 of the SSMA. A by-law made pursuant to s 108 of the SSMA has no force and effect unless the affected lot owner provides their written consent to the by-law prior to the making of the by-law (s 108(5)(a) of the SSMA). 3 A common property memorandum was made pursuant to s 107 of the SSMA. There is no requirement for the affected lot owner to provide their written consent to the making of a by-law under s 107 of the SSMA. This is because a common property memorandum cannot allocate responsibility for lot and common property. A common property memorandum may only "specify" any common property that a lot owner is responsible for (s 107(2) of the SSMA). 4 The Tribunal's interpretation of the common property memorandum is inconsistent with laws governing the definition of lot and common property a by-law has no force or effect that to the extent that is inconsistent with the SSMA or any other Act or law (s 136(2) of the SSMA)."
The Appellant's written submissions reiterated the grounds of appeal and set out (22-23) the terms of s 107 and s 108 of the SSMA. The Appellant submitted (26) that a common property memorandum "cannot contract out of the provisions of the SSMA" having regard to the terms of s 270 of the Act.
The Appellant submitted (27) that the Tribunal's interpretation of the Common Property Memorandum was contrary to the definitions of "Lot" and "common property" recorded in the Strata Titles Act, which was in force and effect in 1993 when the Strata Plan was registered. The Appellant relied upon the provisions of s 5(1) of the Strata Titles Act (29) and s 5(2) of the Act (30), both of which the Tribunal recorded, accurately, in its reasons.
The Appellant submitted (33) that "Sheet 10 of the Strata Plan for the Strata Scheme shows the roof terrace of Lot 50. It contains a notation in the following terms: "The stratum of the terraces where not covered is restricted to 2.5m above the upper surface of their respective floors"
The Appellant submitted (36) "that the structure of the awning's roof itself (including the concrete roof tiles) is situated above the upper horizontal boundary of the roof terrace and is common property".
The Appellant made a number of further submissions (37-42) in support of her contention that the awning was common property (43) and not part of Lot 50. The crux of the Appellant's complaint (44) is that any Common Property Memorandum, which is essentially a by-law, is of no force and effect to the extent that it is inconsistent with any law (s 136(2) of the SSMA). The issue thus raised is whether the by-law was valid and effective to relieve the Respondent of the obligation to maintain any part of the common property as the Respondent contends, or offends s 136(2), as the Appellant contends.
The Respondent submitted (37- 39) that the Tribunal at first instance (at [12]) "correctly stated the effect of a registered common property memorandum in respect of the repair of the awning of Lot 50". The Respondent submitted that, to the extent that the Tribunal at first instance found (at [36]) that the awning was in existence at the date of registration of the Strata Plan, such finding was erroneous at law as it was not based on any evidence, that the area occupied by the awning was "covered" within the meaning of the Strata Titles Act was erroneous at law as a "misconstruction" of the Strata Plan and the Act, and that the limit of Lot 50 was the underside of the ceiling of the awning and the awning above that ceiling constituting common property was a finding that was erroneous at law as a "misconstruction" of the Strata Plan and the Act.
As discussed at the commencement of the hearing of the appeal, the Appellant has not challenged those findings, and the Respondent has not cross-appealed against any orders made by the Tribunal at first instance. Nor has it filed anything analogous to a Notice of Contention asserting that, notwithstanding the asserted errors, the decision of the Tribunal at first instance could be upheld on other grounds. We proceed on the basis that the Tribunal was not "wrong" in making those findings. The issue is whether the Tribunal erred in law in reliance upon those findings, and in concluding that the Common Property Memorandum was valid and effective to relieve the Respondent of the obligation to maintain any part of the common property.
The Respondent referred at length (13-29) to the Tribunal's "reasoning in relation to the awning". More relevantly for present purposes, the Respondent referred to the finding by the Tribunal (at [36]) that "the Common Property Memorandum allocates the responsibility for maintenance and repair of the awning to the lot owner" (31- 32), and to the finding of the Tribunal (at [39]) that "The clear intention of the Common Property Memorandum is to impose upon lot owners the responsibility for maintenance of awnings on balconies and terraces within the height limit fixed as the upper limit of the cubic space for areas which are not covered". It was submitted (33) that the use of the terms "allocates" and "impose" do not signify that the Common Property Memorandum operates to override the legislation and the Strata Plan.
The Respondent asserted that, importantly, the Common Property Memorandum did not "determine whether the awning is common property or not and therefore it only "allocates" or "imposes" the obligations of repair and maintenance subject to the Strata Plan and under the legislation" (36). It was further submitted (38) that the effect of the Tribunal's reasoning was that "the responsibility of repair and maintenance of a building element does not need to strictly reflect the categorisation between common property and lot property under the legislation". It was accordingly submitted (39) that there was "no need to engage in a debate as to any alleged inconsistency with s 108 of the SSMA" because s 108 "only operates for the change, alteration or addition of the common property".
The Respondent relied upon the provisions of s 107(2) of the SSMA providing that a common property memorandum "is to specify whether an owner of a lot or the owners corporation is responsible for the maintenance, repair or replacement of any part of the common property". The Respondent submitted that the Common Property Memorandum did precisely that, and was entirely consistent with the requirements of s 107(2).
In her extensive submissions in reply, the Appellant reiterated the substance of her primary submissions. To the extent that those submissions were in reliance upon the "new evidence" which we have rejected, we have had no regard to them.
The Appellant reiterated (6) that the awning was common property. The submissions in reply of the Appellant engaged with the matters which the Respondent's submissions asserted to have been erroneously determined by the Tribunal at first instance. Having rejected any attempt by the Respondent to challenge those findings in the circumstances which we have earlier recorded, it is unnecessary to refer to those submissions.

Consideration - Ground 1

The Tribunal at first instance found (at [36]) that the awning constituted common property. That finding has not been challenged by the Appellant and, to the extent that the Respondent has sought to do so in its submissions, we have rejected that purported challenge.
The Tribunal found (at [37]) that the Common Property Memorandum "allocates the responsibility for maintenance and repair of the awning to the Lot owner". The Tribunal at first instance did not find, and could not have found, that the Common Property Memorandum vested common property in the Appellant, but found that, pursuant to the Common Property Memorandum, the Applicant was responsible for maintenance and repair of the awning.
The determination of this ground turns on the interpretation by the Tribunal at first instance of the Common Property Memorandum. The Tribunal recorded that the interpretation advanced by the Appellant would "render irrelevant or superfluous the inclusion of item 1(a) within the list of lot owners' responsibilities in the Common Property Memorandum". The Tribunal at first instance found (at [39]) that the clear intention of the Common Property Memorandum was to "impose upon lot owners the responsibility for maintenance of awnings on balconies and terraces within the height limit fixed as the upper limit of the cubic space for areas which are not covered" and that, accordingly, the responsibility for rectification of the roof of the awning fell upon the Applicant ([40]).
For the reasons which follow, we do not accept that the operation of a by-law made pursuant to s 107 of the SSMA "may only pass across repair and maintenance obligations of the common property in the event that the by-law is made pursuant to s 108 of the SSMA" as submitted by the Appellant (23).
As its terms make clear, s 108 is concerned with "changes to common property", which, if enlivened, alter interests in common property or structures on common property, "for the purpose of improving or enhancing the common property". It is clear from the terms of the section that, only after a special resolution is passed in accordance with s 108(1) of the SSMA that questions of responsibility for "ongoing maintenance of the common property concerned" can arise under s 108(4).
In the course of oral submissions, the Appellant's solicitor was invited to identify what practical function the by-law could have, other than to "specify" any common property that a Lot owner is responsible for if the Appellant's contentions with respect to the scope of the relevant by-law were accepted. With respect to the Appellant's solicitor, nothing advanced in response to that question established that, if the Appellant's proposition is correct, the section would have any work to do. The Strata Plan, subject to any special resolutions passed pursuant to s 108 changing the common property, is definitive of, or "specifies", what is common property, and what is the property of individual Lot owners. In those circumstances, by virtue of legal ownership of common property and Lots, nothing remains to be "specified".
As suggested in Tate, and accepted in Veney (at [31]), by-laws are the "series of enactments" by which the proprietors of an owners corporation administer their affairs, and are concerned with the governance of the Strata Scheme. In addition, they have a "public purpose" which goes beyond the function of facilitating the internal administration of the owners corporation. They may be inspected by third parties interested in acquiring an interest in a Strata Scheme.
Importantly for present purposes, the meaning of by-laws should "be understood from their statutory context and language". In our view, s 107 and s 108 have different objects and purposes. The former is concerned with the "maintenance, repair or replacement" of any part of the common property. The latter is concerned with changes to the common property, either by adding to it, altering it or erecting a new structure on common property for the purpose of improving or enhancing it.
There is, in our view, no inconsistency between the provisions of the Common Property Memorandum and any provision of the SSMA. On the contrary, the Common Property Memorandum does no more than s 107 of the Act envisages. A by-law pursuant to s 107 of the SSMA which is inconsistent with any special resolution changing common property pursuant to s 108 may yield to the latter instrument, but that did not occur in this case.
Nothing to which we have been referred by the Appellant persuades us that the Tribunal at first instance erred in its determination of the issue which gives rise to ground 1.

Ground 2

Ground 2 asserted that: "At paragraph [39] of the Decision, the Tribunal erred at law by the incorrect interpreting of clause 1(a) of "Lot Owners Responsibility for maintenance, repair or replacement" in the common property memorandum (clause 1(a)) for the following reasons: A clause 1(a) is with respect to "balcony and courtyards" in the Strata Scheme and the subject awning is on the "Terrace" of the Appellant's Lot as described on the Strata Plan; B Clause 1(a) refers to structures "within the cubic space" of the subject lot; The subject awning is neither on a balcony, courtyard or within the cubic space of the Lot. It must be noted that lots in this Strata Scheme have either courtyards, balconies or "terraces" as noted on the Strata Plan."
In support of this ground, after restating the ground itself, the Appellant submitted (48) that the Tribunal had "failed to take into account the fact that the common property memorandum makes the Owners Corporation liable for the original rooftop awnings." The Appellant submitted that the provisions of the Common Property Memorandum with respect to responsibilities of the "Owners Corporation" with respect to maintenance, repair or replacement included, pursuant to clause 1(h) "awnings within common property outside the cubic airspace of a balcony or courtyard".
The Appellant referred to the statement by the Tribunal at first instance (at [38]) that "It might be argued that the "cubic space" of Lot 50 excluded the area above the lower surface of the ceiling under the awning, as that was the boundary of the Lot". The Tribunal's decision was that such an interpretation: "would render irrelevant or superfluous the inclusion of item 1(a) within the list of Lot owners' responsibilities in the Common Property Memorandum. The clear intention of the Common Property Memorandum is to impose upon Lot owners the responsibility for maintenance of awnings on balconies and terraces within the height limit fixed as the upper limit of the cubic space for areas which are not covered."
It was ultimately submitted (52) by the Appellant that the decision of the Tribunal at first instance "has clearly been made in absence of the Tribunal considering clause 1(h) above, which sets out the "clear intention of the common property memorandum is to impose upon" the Owners Corporation the obligations to repair terraces of "balcony and courtyards".
In response to those submissions, the Respondent asserted that the Tribunal had in fact considered the matters of which the Appellant complained and repeated and relied upon paragraphs 15 to 45 of its submissions in response to ground 1.
The Respondent submitted with respect to the use of the words "balcony and courtyard" instead of "terraces" that: "(i) a fair reading of the common property memorandum is as found by the Tribunal at 39, it is prescribed and can be taken carefully to identify all of the building elements of a "scheme" considered to be relevant. While the Common Property Memorandum does not use the word "terrace", it obviously adopts the words "balcony" as to include "terrace". If this were not the case the "terraces" would be the only building element not contemplated in the Common Property Memorandum; and (ii) the By-Laws of the Scheme also do not use the word "terrace" and instead refer at all times to "balcony"; (iii) the only document where the word "terrace" is used is on the Strata Plan. However, no inference can be drawn from the fact that the Strata Plan marks as "B" the balconies of the lots and as "Terrace" the terraces of the top floor lots because this identification does nothing more than denote that the terraces are not covered by any structures like the balconies; and (iv) ultimately there is no indication in the legislation, in the by-laws or in the Strata Plan that the definitions used in the Common Property Memorandum must be those appearing on the Floor Plan. The two documents are independent, drafted by different entities at different times and the scheme ought to be construed by adopting orthodox rules of interpretation."
For those reasons the Respondent submitted that this challenge should be rejected.
In her submissions in reply ([30]) with respect to this ground, the Appellant referred to the reasons of the Tribunal at first instance (at [37-39]). The Appellant submitted that the Tribunal at first instance erred in its finding (at [39]) because: "(a) the subject awning is neither on a balcony, courtyard or within the cubic space of the Lot. It must be noted that Lots in this Strata Scheme have either courtyards, balconies or "terraces" as noted on the Strata Plan; (b) the Tribunal has failed to take into account the fact that the Common Property Memorandum makes the Owners Corporation liable for the original rooftop awnings; (c) the Owners Corporations [sic] responsibility for repair and maintenance of common property is set out in the common property memorandum."

Ground 2 - Consideration

Clause 1(h) of the Common Property Memorandum provides that the Owners Corporation is responsible for maintenance, repair or replacement of "awnings within Common Property outside the cubic airspace of a balcony or courtyard".
The determination made by the Tribunal (at [39]) was submitted to have been made in the absence of the Tribunal considering clause 1(h) above, which sets out that the "clear intention of the common property memorandum is to impose upon" the Owners Corporation the obligations to repair terraces of "balcony and courtyards".
The question of law which is submitted to be raised pursuant to this challenge is the failure to have regard to a relevant consideration. If established, that challenge would entitle the Appellant to succeed with this ground. That is the only basis upon which this ground is advanced. As is clear, in the absence of legal unreasonableness, which is not a ground of appeal, provided that this was a relevant consideration, and the Tribunal at first instance did have regard to it, the fact that other decisions may have been made in the light of it would not entitle this ground to success. In circumstances where the Appellant has not sought leave to appeal with respect to this issue, that would be determinative of this ground.
The Tribunal at first instance recorded (at [35]) that the Applicant submitted that clause 1(h) of the section of the common property memorandum listing the Respondent's responsibilities for maintenance, repair or replacement included "awnings within common property outside the cubic airspace of a balcony or courtyard". The Appellant had submitted that "This subclause reinforces the duty the Owners Corporation owes under s 106 of the Strata Schemes Management Act to maintain and repair the awnings roof".
It is readily apparent that the Tribunal had regard to clause 1(h) of the Common Property Memorandum and, correctly, identified its terms. It is also clear that the Tribunal at first instance understood, and considered, the substance of the Appellant's submissions in reliance upon clause 1(h) of the Common Property Memorandum.
The Tribunal (at [36]), at least inferentially, for the reasons there stated, found that the awning on the roof terrace of Lot 50 had "been there at the date of registration of the Strata Plan". As recorded earlier in these reasons, no part of this appeal involves any challenge to that finding of primary fact.
The Tribunal recorded the basis upon which the Appellant submitted that the awning above the ceiling constituted common property, and found ([37]) that the Appellant did not seek to establish that the awning was "outside the cubic space of the courtyard, in the sense that it was more than 2.5 metres above the upper surface of the floor". That finding of primary fact has not been challenged in the appeal. The submissions for both parties recognise that the critical finding of the Tribunal at first instance with respect to this issue (at [39]) was that the "clear intention" of the Common Property Memorandum was to impose upon Lot owners the responsibility for maintenance of awnings on balconies and terraces within the height limit fixed as the upper limit of the cubic space for areas which are not covered.
Clause 1(a) of the Common Property Memorandum relevantly provided that Lot owners were responsible for maintenance, repair or replacement of "awnings … within the cubic space of the balcony or courtyard and not shown as Common Property on the Strata Plan".
Clause 1(h) provided that the Owners Corporation was responsible for maintenance, repair or replacement of "awnings within common property outside the cubic airspace of a balcony or courtyard".
We are satisfied that the reasons of the Tribunal at first instance with respect to this issue clearly and accurately identified the controversy which required determination. The findings of primary fact of the Tribunal, which have not been shown to have been erroneous, resolved the issue.
Without suggesting that the issue is without complexity, as the Tribunal at first instance recognised, we are satisfied that the Tribunal did not err in failing to consider clause 1(h), or, having done so, misunderstanding the terms and effect of the clause. Other decisions may have been open to the Tribunal at first instance, that does not demonstrate that the decision which it made was erroneous.

Ground 3

Ground 3 asserted that: "At paragraphs [63] to [67] of the Decision, the Tribunal erred at law in finding that the Appellant was responsible for the "concrete slab which forms the roof of the balcony of the lot" pursuant to special by-law 33 of the strata scheme's by-laws. The Tribunal has ignored the proceeding [sic] wording of by-law 33 as extracted below (with emphasis added in bold) "shown on the Strata Plan as part of the lot, for the specific purpose of building a metal Spiral Staircase". The Tribunal is to take a common sense approach to the interpretation of by-laws. In this instance, the Tribunal has failed to do so by determining that the lot owner is responsible for a large part of the common property slab that has nothing to do with the "building a metal Spiral Staircase"."
In support of this ground the Appellant emphasised (53) the terms of Special By-Law 33.2, which applied to the Appellant's Lot, and conferred the right to exclusive use of "that area of common property being the concrete slab which forms the roof of the balcony of the lot and the floor of the roof terrace above, shown on the Strata Plan as part of the lot, for the specific purpose of building a metal Spiral Staircase, partially enclosed by a Polycarbonate screen, penetrating the concrete slab to permit access to the Roof Terrace from the Balcony of the Lot".
The conditions attaching to the grant of exclusive use of part of the common property included (Special By-Law 33.2.(e)) that the lot owners would "maintain and keep the structure on any common property, the subject of the exclusive use referred to herein, in a state of good and serviceable repair and shall comply with any reasonable request from the Owners Corporation to carry out repairs or maintenance to the structure and common property".
The Appellant submitted (54) that the Tribunal "erred at law" in finding that the Appellant was responsible for the concrete slab which forms the roof of the balcony of the lot pursuant to Special By-Law 33. The Appellant also submitted that the Tribunal at first instance "has not given appropriate weight to the following wording of by-law 33" and, in particular, to the words "for the specific purpose of building a metal Spiral Staircase" appearing in the Special By-Law. The ground of appeal does not raise "weight" challenges. Nor has the Appellant sought leave to appeal on that basis. There is thus no occasion to consider any "weight" challenges.
The Appellant relied (56) on the decision of the Tribunal in Capcelea v The Owners - Strata Plan Number 48887 [2019] NSWCATCD 27 in which it was said (at [106]) that: "In Stolfa at 30 the Court of Appeal said: "It will be a question of fact or mixed fact and law in each case whether any given special resolution or special resolutions is or are adequate in its or their specificity of authorisation and in its or their particularity as to the action proposed. There is obviously a clear policy in requiring direct and specific attention to the proposed action; at the same time, an overly pedantic attention to detail might frustrate otherwise clear authorisation. Common sense and reasonableness have their part to play in the operation of a provision intended to regulate how people go about dealing with the common property in their units in everyday life.""
The Appellant submitted (57) that the plans set out in page 586 of the joint tender bundle were "very helpful in illustrating the location and proportionate size of the spiral staircase on the terrace of Lot 50". We have had regard to that page of the plans, and to other pages of the joint tender bundle which identify the various parts of the Appellant's property and the common property.
The Appellant advanced a number of calculations (58) in support of her contention that the spiral staircase "takes up 1.7% of the terrace and approximately 7.2% of the balcony" such percentages representing "a minimal amount of space in proportion to the size of the terrace and balcony."
The Appellant further submitted (60) that there was no provision in the Special By-Law which provided that the Appellant was granted exclusive use of "the concrete slab which forms the roof of the balcony of the Lot and the floor of the Roof terrace above" for any other purpose than to install the staircase, and the by-law did not provide that they were responsible for repair and maintenance of this area. It was thus submitted that the by-law "simply provides that the spiral staircase may be installed in this area by disposing of a circular piece of the level 13 floor slab where it does not also form the upper roof of the apartment on level 12." Implicit in that contention is the proposition that the Appellant's right to exclusive use of the common property was limited to the area removed to enable access to it via the spiral staircase in Lot 50. We do not accept that interpretation of the Special By-Law.
The Appellant referred (66) to the reasons of the Tribunal at first instance (at [59]) with respect to the expert evidence of Mr Lee. The Appellant referred (67) to cross-examination of Mr Lee by the Appellant's solicitor. It was submitted (68) in reliance upon that cross-examination that there was "clear evidence that the alleged "channel" was nothing more than a gap left between full size tiles and the boundary wall." The Appellant then complained (69) that the Tribunal at first instance "did not give appropriate weight to this evidence, resulting (in part) in his finding that Lot 50 is responsible for repairing and maintaining the slab". As recorded earlier, no ground of appeal raises "weight" challenges. Nor does any ground of appeal assert a material error of fact.
The Appellant further referred (70- 71) to other evidence from Mr Lee in cross-examination and submitted (72) that there was: "clear evidence that the works required by Mr Lee do not relate to the staircase that has been installed. Under cross-examination, Mr Lee admits that if the staircase wasn't there, there would still be water ponding in the affected area. Therefore, the lot owner should not be responsible for of [sic] the works proposed by the Joint Expert Report".
In its submissions in reply to this ground, the Respondent relied upon the terms of s 144(3) of the SSMA (49) which provides that: "To the extent to which a common property rights by-law makes a person directly responsible for the proper maintenance of, and keeping in a state of good and serviceable repair, any common property, it discharges the owners corporation from its obligations to maintain and repair the property under this Act."
The Respondent submitted (51) that the Tribunal's "construction of the plain words of the By-Law" was consistent with authority, and relied upon the decision in Tate, to which we have earlier referred, and in particular the statement (at [32]) that: "In ascertaining the meaning of Special By-Law 4, it is necessary to consider the language of the by-law, viewed in the statutory context in which it was made; and whilst recourse to surrounding circumstances may be permissible as an aid to construction it is necessary, particularly bearing in mind the public purpose of strata scheme by-laws, to exercise caution in going beyond the language of the by-law itself and its statutory context."
It was thus submitted (52.1) that the expression "concrete slab which forms the roof of the balcony of the lot" identifies "the area of the exclusive use and special privilege the subject of the construction of the staircase in the absence of dimensions and directions in the circumstances where the by-law does not contain any plan, diagram or more specific description in relation to the location and method of the construction."
The Respondent referred to an exchange during the hearing between the Tribunal at first instance and the solicitor for the Appellant in which the Appellant submitted, as the Tribunal at first instance well understood, that the "area the subject of the exclusive use by-law is limited to the area removed for the purposes of the penetration" and went no further.
The Respondent referred to evidence given by Mr Lee in cross-examination by the Respondent's solicitor (52.1). The Respondent further submitted (52.2) that it would be: "unreasonable that anyone, including future purchases (sic), in consulting the by-law are required to speculate as to the precise characteristics and location of the slab and staircase components in order to understand their duty of repair and maintenance especially when those under clause 2(e) of by-law 33 are not limited to the structure but extend to the common property the subject of the exclusive use."
The Respondent also submitted (52.3) that "The type of burden imposed upon the owner of Lot 50 is also reasonable in consideration of the fact that the terrace of Lot 50 and the staircase is only used by Lot 50 and no economic compensation was paid by the owner to the Owners Corporation". It was further submitted (52.4) that the Respondent's construction of the Special By-Law was consistent with Special By-Laws 32 and 34 which regulated the installation of similar stairwells in Lots 47 and 48 respectively.
The Respondent disputed (53) that the Tribunal had erred in its construction of the Special By-Law in its reasons (at [65]). The Respondent further submitted (54) that "The evidence given by the experts during the proceedings are irrelevant to the proper construction of the by-law" and that "to the extent the Appellant is seeking to challenge findings of fact or the weight given by the Tribunal to the evidence, there is no ground of appeal to this effect and, in any event, leave of the Tribunal would be required which is not sought".
We have earlier recorded that no ground of appeal asserts material errors of fact, or seeks leave to appeal on the basis of the weight given to evidence which was before the Tribunal at first instance. We do not accept that the evidence of the experts during the proceedings was "irrelevant" to the proper construction of the By-Law, but, consistent with the authorities to which both parties have referred, that evidence had limited relevance in the interpretation of the By-Law.
The Respondent submitted (56) that the evidence of the experts was "available to be considered in relation to the apportionment of the contribution for the repairs to the drainage system of the terrace floor of Lot 50". We agree with that proposition and doubt that, were that to be the only issue, the Appellant would seriously challenge the orders of the Tribunal at first instance. Order 4 made by the Tribunal was specifically directed to difficulties of that kind, and preserved the rights of both parties in that respect.
The Appellant filed comprehensive submissions in reply. To the extent that they were reliant upon the "new evidence", which we have rejected, it is unnecessary to engage with those submissions.
The Appellant submitted (42) that the Respondent's submissions (52.3) were "misconceived" and "irrelevant", as the "terrace in question is part of the Appellant's lot property, not the common property. The lot owner cannot be expected to pay compensation to the owners corporation for exclusive use of their own lot terrace. If the terrace was common property that the Appellant was granted exclusive use of pursuant to special by-law 33, then this submission would make sense."
Although it may not have been so intended, if the foregoing proposition were accepted, the liability of the Appellant would be as the Tribunal at first instance held it to be, albeit on a different basis. We have not been referred to anything which establishes that the orders of the Tribunal at first instance imposed any liability on the Appellant to pay "compensation" to the Respondent for any reason. On the contrary, and as the Respondent submitted, the Respondent received no "compensation" for the grant of the exclusive use of an area of common property to the Appellant.
The Appellant also submitted (43) that the contention of the Respondent (52.4) was erroneous in that it would mean that "Lot 47 would take responsibility for the repair and maintenance obligations of the entire slab that forms the floor of lot 47's terrace, even though the works only permitted the cutting and removal of a rectangular hole from the slab". For the reasons recorded below, we do not accept that interpretation of the Special By-Law.
The Appellant responded in detail to the submissions of the Respondent with respect to the evidence of the experts (47- 52) and reiterated (53) that she did not require leave to appeal as each of the grounds agitated by her involved a question of law. We apprehend the question of law asserted by this ground to be that, by failing to have regard to part of Special By-Law 33(2), the Tribunal at first instance erroneously interpreted the scope of the liability of the Appellant for remedial work to the roof of the balcony. In substance, that challenge raises a question of law, but, for the reasons recorded below, the Appellant has not demonstrated error with respect to it.
The Tribunal at first instance found ([63]) that the answer to this issue lay "in the specific terms of the grant of the exclusive use right", that is "the right to exclusive use of that area of common property being the concrete slab which forms the roof of the balcony of the Lot and the floor of the roof terrace above"". It is not in doubt that Special By-Law 33(2) proceeded to add the words "for the specific purpose of building a metal Spiral Staircase, partially enclosed by a Polycarbonate screen, penetrating the concrete slab to permit access to the Roof Terrace for the Balcony of the Lot, subject to the following terms and conditions". The Tribunal was well aware of those words, and the Appellant's case with respect to their meaning and effect.
The Tribunal at first instance referred ([64]) to the plans which were before it and the Strata Plan, and found, permissibly in our view, that the concrete slab which forms the roof of the balcony of the Appellant's Lot "does not include the entirety of the floor of the roof terrace", that the balcony is limited to the area outside the internal area of Lot 50 on level 12, and that it is only that part of the slab which is directly above the balcony which could be said to form "the roof of the balcony".
The Tribunal found ([65]) that "the fact that the reason for the grant of an exclusive right was for the installation of a spiral staircase does not limit the area in respect of which the Applicant was granted exclusive use". The Appellant contends that, properly interpreted, that is precisely what Special By-Law 33.2 did. The finding of the Tribunal at first instance ([66]) that the Appellant was required to maintain "the area subject to the exclusive use right" cannot be controversial. The controversy is the extent of the area which was subject to the exclusive use rights.
The Tribunal at first instance found ([67]) that "since the exclusive use right extends to the entirety of the area which constitutes the roof of the balcony, the Applicant is obliged to maintain and repair the entirety of that area". As is readily apparent, the Tribunal's reference to "the entirety of that area" was to the area covered by the Appellant's right to exclusive use of that area. Whether that was a finding of fact or law, nothing to which the Appellant has referred establishes that it was wrong.
The Appellant contends that the exclusive use right granted to her was limited to the area of the roof of her balcony which was removed for the purpose of installing the spiral staircase. The Respondent submits that the Tribunal at first instance correctly found that the Appellant's exclusive use rights extended to the entirety of the area which constituted the roof of the balcony. The Tribunal found, uncontroversially (at [8]), that Lots 47 to 50: "each included both a balcony on level 12 and part of the roof deck on level 13. Originally the roof decks were only accessible from the common property fire stairs. Over time common property rights by-laws have been passed by the Owners Corporation which enabled the owners of Lots 47 to 50 to construct a direct means of access between their balconies on level 12 and their respective parts of the roof deck on level 13".
We do not understand that the Special By-Laws which enabled each of the holders of Lots 47 to 50 to "penetrate the concrete slab to permit access to the Roof Terrace from the Balcony of the Lot" limited or expanded the rights and obligations of those Lot holders with respect to the maintenance of the roof terrace beyond the area to which the owners had exclusive use rights.
The Tribunal found ([68]), by reference to a plan included by the experts in their joint report, found at Tender Bundle page 585, that "the portion of the slab which constitutes the roof of the balcony on level 12 is a relatively narrow area extending from the southwest corner of the roof terrace along the western side and about halfway along the northern side" which "excludes all three areas where the ponding is occurring, with the possible exception of a small part of the area on the western side of the deck closest to the spiral staircase".
The Tribunal at first instance found ([70]) that, although the Respondent was responsible for the rectification of the "bulk of the roof terrace", it was not responsible for the maintenance and repair of its entirety, and that other parts of the rectification work "such as the construction of a landing to the spiral staircase, constitute repair on the part of the deck" for which the Appellant is responsible. We have not been referred to anything which establishes error in law or logic in that finding.
In view of its findings, the Tribunal at first instance found ([71]) that "It would be appropriate that the cost of rectification work be shared by the parties in proportion to the respective areas involved". We have not been referred to anything which establishes error in law or logic in that finding.
We are not persuaded that the Tribunal at first instance erred in its interpretation of the meaning and effect of clause 33(2) of the Special By-Law. As the Tribunal at first instance recorded (at [8]), the Appellant was liable for repair and maintenance of portion of the "roof deck" above her lot prior to the making of the Special By-Law. If Special By-Law 33(2) did not confer, or need to confer rights to exclusive use of that area, and was for the "specific purpose" identified in it, that would not advance the Appellant's challenge. It would be sensible to interpret the By-Law as requiring the Appellant to maintain the area of the common property which was the area of the roof terrace which was affected by the exercise of the Appellant's rights to interfere with it in order to install a spiral staircase which solely benefitted that lot.
Whether regarded as "delegated legislation or statutory contracts", interpreting Special By-Law 33 "objectively" by what it "would convey to a reasonable person" provides considerable support for the decision of the Tribunal. In our view, Special By-Law 33 would convey to a reasonable person that, in return for having exclusive use of an area of common property, the lot owner so benefited assumed responsibility for maintaining and repairing that area of the common property. We cannot accept that the by-law would convey to a reasonable person that the right conferred, and thus the associated liability, was limited to the area removed from the common property to permit the construction of the spiral staircase to access that common property.
In terms of the "constitutional function" of by-laws in "regulating the rights and liabilities of Lot proprietors inter se", it is relevant that, if the interpretation for which the Appellant contends is correct, the part of the by-law which confers exclusive rights would be maintained, but the part of the same by-law which imposes obligations with respect to repair and maintenance would not be. The improbability of that outcome having been intended is readily apparent, and not conducive to an orderly and "fair" regulation of rights and liabilities of lot proprietors. The "proportionality" of liability provided for by the orders of the Tribunal at first instance in reliance upon its interpretation of the Special By-Law was conducive to an orderly and fair regulation of rights and liabilities of lot proprietors, and consistent with the principles which emerge from the authorities.
It is not necessary for present purposes to consider the application of business efficacy principles applicable to commercial contracts. In our view, there is no ambiguity or uncertainty or "gap" in the Special By-Law which potentially enlivens a consideration of those principles. Nor do we consider that construing the by-law in the way the Tribunal at first instance did was inconsistent with its statutory context. On the contrary, as we have earlier recorded, the By-Law in this case is consistent with the terms authorised by the "governing statute".
Finally, and correctly in our view, the Tribunal at first instance did not go "beyond the language of the by-law and its statutory context to ascertain its meaning" and kept a "tight rein" on "recourse to surrounding circumstances".
Whilst other interpretations of Special By-Law 33(2) may have been available, we are not persuaded that the interpretation of the By-Law applied by the Tribunal at first instance was not open to it, or wrong in law. If, properly interpreted, the rights conferred pursuant to the by-law were limited to the "specific purpose" identified in it, that would not render the decision of the Tribunal at first instance erroneous, as the obligation recognised by it arose prior to, and was not constrained by the making of the By-Law.

Conclusion

No ground of appeal having been made out, the appeal will be dismissed, costs will be reserved and a timetable for submissions with respect to costs will be ordered. To the extent that, inferentially, the Appellant raised challenges which required a grant of leave, we reject such challenges in reliance upon our reasons for rejecting the challenges which are capable of raising questions of law.

Orders

The Appeal Panel makes the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. The stay of orders 6, 7 and 8 made on 16 September 2021 is lifted. 4. If the Respondent seeks costs of the appeal, it must file and serve submissions in support of such application within 14 days of today's date. 5. Within 14 days thereafter, the Appellant may file and serve submissions in response to any submissions of the Respondent concerning costs of the appeal. 6. The submissions of the parties should include a submission as to whether the Appeal Panel may dispense with a hearing on costs and determine costs of the appeal 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: 07 April 2022

Strata Titles Act 1973(NSW)

Lynne Maree Worral v The Owners - Strata Plan No. 43357

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (10)