Malcolm Patrick and Margarita Patrick v The Owners-Strata Plan No 9079

Background

1. On 7 February 2014 the appellants filed an application for an Adjudicator's order pursuant to s 138 of the Act requiring: 1. The Owners Corporation ("OC") to remove a pipe passing through the bathroom of Unit 5, 5-7 The Esplanade ("bathroom") from the outer Eastern wall to the inner Western wall of the bathroom ("pipe"); 2. At its expense, the OC relocate the pipe by installing an underground trench below the floor level of the bathroom of Unit 5; 3. At its expense, the OC replaces the wall and floor tiles in the bathroom of Unit 5; 4. At its expense, the OC makes good all and any damage to the bathroom including replacement of the cistern and toilet bowl, waterproofing, drainage and shower recess; 5. The OC makes good and rectifies all damage occasioned and clean up premises; 6. At its expense, the OC apply to the LPI to register and easement in relation to the location of the pipe within Unit 5;
2. On 13 May 2014 Adjudicator Ross made a determination to dismiss the applicant's application for adjudication.
3. On 14 May 2014 by letter Adjudicator Ross gave notice of the order dismissing the adjudication and published her reasons ("Notice") by posting the Notice in ordinary post to the: 1. applicants at their address, PO Box A1416, Sydney South NSW 1235; and, 2. respondent to the adjudication: 1. care of Dynamic Property Services, Floor 5, 162 Goulburn Street Sydney NSW 2000; and, 2. its solicitors care of Lawyers Chambers on Riley Pty Ltd, 98 Riley Street, Darlinghurst NSW 2010; and, 3. The Secretary, Owners Corporation SP9079 5-7 The Esplanade Elizabeth Bay 2011.
4. The appellants were the applicants and made submissions in the application for the Adjudicator's order. There is no contention that they have standing to bring this appeal (see s 177 (1)(a)(b) of the SSMA).

Legislation

1. S 177 (3)(b) of the SSMA provides that an appeal against an Adjudicators order must be lodged: In the case of an appeal against an order dismissing an application-not later than 21 days after the order takes effect;
2. S 177 (4) of the SSMA provides: Section 41 of the Civil and Administrative Act 2013 does not apply in relation to the periods referred to in subsection (3)
3. S 41 of CATA provides: 1. The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. 2. Such an application may be made even though the relevant period of time has expired.
4. S 210 of SSMA provides that an Adjudicators order takes effect: 1. An order takes effect when a copy of the order is served: 1. If the order requires a person to do or refrain from doing a specified act, on that person, or 2. in any other case, on the owners corporation for the strata scheme to which the order relates. 1. This section does not apply if express provision is otherwise made by this Act or in the order itself.
5. S 174 of the SSMA requires a copy of an order of an Adjudicator to be served as follows: 1. A copy of an order of an Adjudicator under this Part must be served by the principal registrar on: 1. The owners corporation for the strata scheme to which the order relates and, in the case of a leasehold strata scheme, the lessor under the scheme, and 2. The applicant for the order, and 3. any person who duly made submissions to an Adjudicator in connection with the application, and 4. any person against whom the order was sought and any person who, by the order, is required to do, or refrain from doing, a specified act.
6. S 235 (2) of the SSMA permits certain documents to be served on an owners corporation: 1. A document other than a summons or other legal process may be served on an owners corporation: 1. By leaving it with a person referred to in subsection (1) or in the letterbox of the owners corporation, or 2. By posting it, by prepaid mail, to the owners corporation at its address recorded in the folio of the Register comprising the common property, or 3. By sending it by facsimile transmission to a person referred to in subsection (1).
7. S 76 of the Interpretations Act 1976 provides for service by post as follows: 1. If an Act or instrument authorises or requires any documents to be served by post (whether the word "serve", "give' or "send" or any other word is used), the service of the document: 1. May be effected by properly addressing, preparing and posting a letter containing the document, and 2. In Australia or in an external Territory-is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth working day after the letter was posted, and 3. In another place-is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected at the time when the letter would have been delivered in the ordinary course of post 1. In this section: "Working day" means a day that is not: 1. A Saturday or Sunday, or 2. A public holiday or a bank holiday in the place to which the letter was addressed.

Appellants' submissions

1. The appellants contend that their appeal was commenced within 21 days of the service of the Adjudicator Ross's order and is therefore made in time.
2. The Notice is dated 14 May 2014. The appellants' assume that the Registrar caused the Notice to be posted on that day in accordance with s 174 of the SSMA. That assumption is not in contention. The appellants' deem that the Notice was served on the fourth working day after posting pursuant to s 76 of the Interpretation Act. If so, then the Notice is deemed served on 20 May 2014.
3. The appellants further contend that the time within which to appeal runs from 20 May 2014 and the last day to file an appeal would have been 10 June 2014. The appeal having been filed on 6 June 2014, the appellants submit it is filed within time.
4. In appellants response to the respondent's contention that the words "unless evidence sufficient to raise doubt is adduced to the contrary" in s 76 of the Interpretations Act means evidence to raise doubt about whether a document was served on the fourth working day after posting is: "[T]hat interpretation is not available. "To the contrary" is in the singular. The ordinary meaning of "contrary" is "being the opposite one of two". In the present case, the contrary of being served is not being served. "The contrary" cannot refer to "service on the fourth working day after posting" as there is no opposite of the fourth working day after posting".
5. The appellants rely on Adams J in Blue Haven Pools & Spas Pty Ltd v Cunningham and Anor [2011] NSWSC 1435 ([31]) where he said that s 76 "permits rebuttal of the presumption of service". In Vescio v Westpac Banking Corporation [2003]NSWSC 1270 [46] Bryson J said: "In particular I see no implication from the terms of subs 76(1)(b) that if evidence is sufficient to raise doubt is adduced the document should be taken not to have been effected at all; to my mind the better reading is that para (b) deals only with establishing the day on which service is to be taken effected".

Respondent's submissions

1. The respondent submits that the Notice was received by the OC on 15 May 2014, that submission is supported by an Affidavit of Jenny Jones, an employee of the OC's strata manager, affirmed 8 September 201. Ms Jones's evidence is that she opened mail from the Registrar and received the Notice on 15 May 2014 and that a copy of it was emailed to respondent's solicitor on that day.
2. The respondent contends that the Notice was served on the OC on 15 May 2014, being the date of receipt. By that service on that day the respondent contends that the OC has been served and in accordance with s 210(1)(b) of the SSMA the order of the Adjudicator takes effect from 15 May 2014.
3. The day of service does not count in the reckoning of the 21 days (s 36(1) of the Interpretation Act) in which to file the appeal. On that submission the last day for filing the appeal is 5 June 2014. The Application for Tribunal Orders is dated 6 June 2014 and the Tribunal has affixed its date stamp showing 6 June 2014 as the date on which the appeal was lodged.
4. An appeal against an order dismissing an application must be lodged not later than 21 days after the order takes effect (s 177(3) of the SSMA).
5. The respondent says that "evidence to raise doubt that the order was served at a time order was served at a time other than four working days after the letter was posted" in s 76 of the Interpretations Act means that the order "was served at all, that the order was served on a date earlier than four working days after the letter was posted, or a date later than four working days after the letter was posted".
6. The respondent contends that Bryson J in Vescio supports its interpretation of s 76: "...in my understanding creates a mechanism which a party attempting to prove service can avail himself of but does not make general prescription regulating matters which are already regulated by s170".
7. The respondent also relies on: 1. Brennan v New South Wales Land and Housing Corporation; New South Wales Land and Housing v Brennan [2011] NSWCA 298 at [8] when comparing s76 of the Interpretation Act to s78 of the Consumer Trader and Tenancy Tribunal Act, Giles J said: "Section 78 of the CTTT act is the principal provision concerning service by post, enabling such service amongst other ways but not saying anything about service taking effect. Section 78 is supplemental in respect by s76 of the Interpretation Act 1987, which raises a rebuttable presumption of service at a stated time after the date on which the document was posted". and later referring to clause 50(4) of the then CTTT Regulation Giles J (with Basten JA and Handley JA agreeing) at [54] said: "These matters are not conclusive. On the other hand, there is a practical inconsistency between the terms of cl 50(4) of the Regulation and s76(1)(b) of the Interpretation Act because the former implicitly excludes that which is permitted by the latter, namely evidence to raise doubt as to service having been effected on a particular day or, presumably, at all." 1. Trinh & Nguyen v Cross (Tenancy) [2009] NSWCTTT 325, Member Barentson said: "The provisions of the interpretation Act 1987 section 76 are merely deeming provisions. Evidence can be given which establishes that the date upon which a posted document received was more or less than 4 clear working days, or that a posted document was not received at all. In that case, the direct evidence of what occurred is the evidence upon which the Tribunal must act, rather than the deeming provisions of s76". 1. GPT Funds Management 2 Pty Limited v Footwear Trading Group Pty Ltd [2013] NSWDC 199 at [106], Taylor Sc DCJ found that a notice served on a tenant by express post rebutted the presumption in s76(1)9b) to have been rebutted by evidence that service had been effected earlier; namely an email from a solicitor sent two days after the date of the notice, evidencing that the notice had been received at least by that time and date.
8. The respondent contends that the authorities do not support the appellants' submission.
9. The last day for lodging an appeal was 5 June 2014. The applicants lodged their appeal on 6 June 2014. The respondent submits the appeal was lodged one day out of time.

Findings

1. The applicants and the respondent agree that the appeal against the dismissal of the appellants' application for adjudication is governed by s 177(3)(a) of the SSMA.
2. The words in that section critical to the time for making the appeal before the Tribunal is that the appeal must be lodged "not less than 21 days after the order takes effect".
3. The day that the order took effect is the day that it was served on the OC.
4. S 76 of the Interpretation Act deems service by post to be effected on the fourth working day after being posted "unless evidence sufficient to raise doubt is adduced to the contrary"
5. The Tribunal is not satisfied that the interpretation of "evidence sufficient to raise doubt is adduced to the contrary" as the appellants contend can be sustained. The interpretation of "contrary" as being singular and "the opposite of two" in support of the contention that the contrary of being served is not being served is not supported by the authorities.
6. Indeed, in Brennan, the NSW Court of Appeal, sees that s 76 allows for a rebuttable presumption of service in the absence of service otherwise being effected.
7. Member Barnetson in Trinh & Nguyen found that direct evidence of what occurred is evidence upon which the Tribunal must act, rather than the deeming provisions of s 76.
8. Taylor DCJ in GPT found that the direct evidence of service by an email before the presumption of service by post rebutted the presumption of service in s 76.
9. The appellants' reliance on the decisions of Vescio and Blue Haven to support their contention appears to be narrowly regarded, and as the respondent contends, those cases support its contention that s 76 "permits rebuttal of the presumption of service".
10. The Tribunal is satisfied that the evidence of Ms Jones in her affidavit affirmed 8 September 2014 establishes that the respondent became aware of the order dismissing the application for adjudication on 15 May 2014 and therefore the order took effect on that day.
11. The time in which the appellants could lodge an appeal was not later than twenty one days after the order took effect, which is not later than 5 June 2014. The appeal having been lodged on 6 June 2014, it was one day out of time.
12. S 177(4) of SSMA excludes the Tribunal's discretion to extend the time for lodging the appeal under s 41 of CATA.
13. Unless the appeal is lodged within the time permitted under s 177 of the SSMA the Tribunal has no jurisdiction to hear and determine it. The defect is incapable of remedy. The Tribunal must dismiss the appeal.

Conclusion

1. The Tribunal dismisses the appeal and the Adjudicators decision is affirmed.
2. The Tribunal reserves its decision as to costs to allow both parties to make submissions on the issue of costs only and the Tribunal makes the following directions. 1. The applicant may make written submissions by filing those submissions as to costs with the Tribunal and serve a copy of those submissions on the respondent within 14 days of the publication of this decision; 2. The respondent may make written submissions by filing those submissions as to costs with the Tribunal and serve a copy of those submissions on the applicant within 21 days of the publication of this decision. 3. The issue of costs will be determined by the Tribunal on the papers. P Boyce Senior Member Civil and Administrative Tribunal of New South Wales 2 December 2014 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: 12 February 2015