McClenahan v Owners Corporation SP69904

Grounds of appeal and hearing of the appeal

1. The appellant's grounds of appeal are set out in his notice of appeal dated 6 December 2016. These grounds of appeal can be summarised as follows: 1. The Tribunal was incorrect in determining that the relevant date for the purpose of a valuation under s183(4) was 24 October 2003, being the date of registration of the plan of consolidation SP 71482. 2. The relevant date was in fact 27 February 2003 being the date the original strata plan SP 69904 was registered. 3. The valuation provided by Mr McKenzie was a valuation prepared at the relevant date, namely 27 February 2003. 4. At a directions hearing which occurred prior to the final hearing, the Tribunal had advised the parties that "an expert witness could only be challenged by another expert witness and … the Tribunal would not accept the challenge to an expert witness by a layperson". However, at the final hearing the Tribunal had allowed Mr Q Tan, the appointed representative of one lot owner (Ms Pamela Tan), to cross examine the appellant's expert, Mr McKenzie. This cross-examination should not have been permitted because the matters put in cross-examination had not been raised by any other expert. Consequently, it was not open to the Tribunal to have regard to the answers of Mr McKenzie to reach the conclusion at [42] or the decision that Mr McKenzie "has not been able to support his contention as to Lots 1, 8 and 15 … (and) … has not inspected individual units and cannot satisfy an enquiry as to how he comparatively values one lot from another under any scrutiny." 5. If the Tribunal had not improperly rejected the evidence of Mr McKenzie and had not allowed the impermissible cross-examination of Mr McKenzie, it would have reached a different conclusion and determined that the original unit allocation was unreasonable. 6. Further, subject to a minor mathematical error, it should have accepted the appellant's evidence found at page 14 of Mr McKenzie's valuation and made an order reallocating unit entitlements between the lot owners in the manner which Mr McKenzie assessed as fair.
2. At the hearing of the appeal, the appellant made oral submissions in support of the above grounds of appeal.
3. In relation to the issue of what was the relevant date for the valuation, the appellant said the proper construction of the legislation and the directions issued by the Registrar General in respect of plans of consolidation indicated that the relevant date was not the date a plan of consolidation was registered but rather the date the original strata plan was registered.
4. In relation to the valuation evidence, the appellant said that he complied with all relevant requirements and that this evidence should not have been rejected. While the appellant accepted that Mr McKenzie's valuation did not deal with issues such as the different use of resources (such as lifts and other facilities) by different lots within the strata scheme, he said that the way the valuation had been undertaken was a reasonable approach. The appellant also submitted that while he had bought his lot based on the original unit allocation, he had made the present application to reallocate unit entitlements because of the large amount of recent levies which were being raised by the Owners Corporation to undertake work to the building.
5. In relation to the issue of cross examination of Mr McKenzie, the appellant did not suggest he had been denied an opportunity at the original hearing to make submissions concerning the answers given by his expert in cross-examination.
6. At the hearing of the appeal, submissions were made by three lot owners, one of whom also made submissions on behalf of the Owners Corporation.
7. Firstly, Mr Tan made submissions on behalf of Ms Tan. Mr Tan also relied on a Reply to Appeal and written submissions which Ms Tan had previously filed.
8. Inter alia, the submissions raise the following matters: 1. The valuer, Mr McKenzie, did not inspect all lots, a matter necessary to the formulation of any valuation opinion. 2. The unit entitlements assessed by Mr McKenzie were arbitrary and not calculated on "traditional professional valuation methodologies". 3. The cross-examination of Mr McKenzie at the original hearing was permissible and the inability of Mr McKenzie to explain how he reached his opinions in respect of lots 1, 8 and 15 provided a proper basis for the Tribunal to reject his valuation evidence. 4. The strata scheme is a mixed development of commercial and residential lots. If adjustment is necessary, it should only be between commercial lots, not residential lots.
9. The second respondent to make submissions was A&S United Holdings Pty Ltd, an owner of a commercial lot in the strata scheme. Its representative at the hearing was Mr A Kassis.
10. Mr Kassis had previously filed a Reply to Appeal and relied upon a valuation report prepared by Mr Rennie dated 6 October 2016 which had been provided to the Tribunal at the original hearing. This report provided valuations of the commercial Lots 19, 21, 22, 23 and 28 (being the consolidated lot). The valuations for these lots were prepared as at 24 October 2003, being the date of registration of the plan of consolidation. The valuations deal with the different lots and the car spaces and other facilities attached to them. Some of these values were significantly different to those assessed by Mr McKenzie both in terms of relative values between different lots and relative values between the date for Mr McKenzie's valuation (February 2003) and Mr Rennie's valuation (October 2003).
11. At the hearing of the appeal, Mr Kassis sought to rely on a further report from Mr Rennie prepared in January 2017. In doing so he conceded that this report could have been provided at the original hearing if it had been requested at that time.
12. Mr Kassis also made oral submissions at the hearing of the appeal.
13. In short, Mr Kassis submitted there was some discrepancies in the valuation evidence and that Mr McKenzie's valuation was in part incorrect. For example, Mr McKenzie had valued lots 21 and 28 at $880,000 despite the fact one lot was at the front of the building and had different facilities attached to it. On the other hand, he also appeared to submit that there were some discrepancies between the unit allocations of different lots.
14. The final respondent to make submissions was Mr S Faust, who spoke as a lot owner as well as a member of the Owners Corporation.
15. His submissions appear centred on the "unconventional approach" taken by the appellant in making an application to the Tribunal rather than providing the parties with an opportunity to discuss any evidence and resolve the matter amicably.
16. One problem with these submissions is that it was apparent to the Appeal Panel that it was unlikely any consensus would be reached between all the lot owners because a reallocation of all unit entitlements necessarily meant that some lot owners would receive a financial benefit if the unit allocation was reduced whereas others would be burdened in consequence of any reallocation.

Consideration

1. This is an appeal against a decision of the Tribunal made in its general jurisdiction in respect of an application under s183 of the SSMA 1996. As such, it is an internally appealable decision within the meaning of s 32 of the NCAT Act. The decision was made on 16 November 2016. The appeal was lodged on 7 December 2016, that is within 28 days of the original decision as permitted by Rule25(4)(c)of the Civil and Administrative Tribunal Rules, 2014.
2. While the SSMA 1996 was repealed on 30 November 2016 and replaced by the Strata Schemes Management Act, 2015 (SSMA 2015), the right of appeal being exercised accrued on 16 November 2016 and is preserved by s30(1)(c) of the Interpretation Act, 1987, the right not otherwise being removed by the SSMA 2015: see ADCO Constructions Pty Ltd v Goudappel (2014) CLR 1 at [27].
3. The central question in this appeal is whether or not the Tribunal was in error in rejecting the valuation of Mr McKenzie and concluding that the relevant date of the valuation required by s183(4) of the SSMA 1996 was not the date of registration of the original strata plan, namely 27 February 2003 but rather the date of registration of the plan of consolidation, namely 24 October 2003.
4. If yes: 1. was the Tribunal correct to conclude the evidence did not prove the initial unit allocation was unreasonable; and 2. should the Tribunal have made an order to reallocate units in accordance with the table provided by Mr McKenzie.
5. The central question is a question of law to be determined having regard to the proper construction of the SSMA 1996. The subsequent questions potentially raise mixed questions of law and fact.
6. In respect of a question of law, there is a right of appeal. Otherwise, leave to appeal is required: see s80(2)(b) of the Civil and Administrative Tribunal Act, 2013 (NCAT Act). Leave may only be granted if the appellant can demonstrate he may have suffered a substantial miscarriage of justice: see Sch4 Cl12 of the NCAT Act. The principles applicable to the grant of leave were set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17
7. The power to make an order for the reallocation of unit entitlements in a strata scheme is found in s183 of the SSMA 1996. Relevantly, this section provides: 183 Order for reallocation of unit entitlements (1) Tribunal may make order allocating unit entitlements The Tribunal may make an order allocating unit entitlements among the lots that are subject to a strata scheme in the manner specified in the order. (2) Circumstances in which order may be made An order may be made only if the Tribunal considers that the allocation of unit entitlements among the lots: (a) was unreasonable when the strata plan was registered or when a strata plan of subdivision was registered, or (a1) was unreasonable when a revised schedule of unit entitlements was lodged at the conclusion of a development scheme, or (b) became unreasonable because of a change in the permitted land use, being a change (for example, because of a rezoning) in the ways in which the whole or any part of the parcel could lawfully be used, whether with or without development consent. …… (3) Matters to be taken into consideration In making a determination under this section, the Tribunal is to have regard to the respective values of the lots and (if a strata development contract is in force in relation to the strata scheme) to such other matters as the Tribunal considers relevant. (4) Application to be accompanied by valuation An application for an order must be accompanied by a certificate specifying the valuation, at the relevant time of registration or immediately after the change in the permitted land use, of each of the lots to which the application relates. (5) Requirements as to person giving certificate The certificate must have been given by a qualified valuer. ….. (8) Who may make application? An application for an order under this section may be made only by: (a) an owner of a lot (whether or not a development lot) within the parcel, or (b) the owners corporation, or (c) the lessor of a leasehold strata scheme, or (d) the local council, or by any other public authority or statutory body representing the Crown, being an authority or body that is empowered to impose a rate, tax or other charge by reference to a valuation of land. ………. (11) In this section: qualified valuer: (a) in relation to a freehold strata scheme, has the same meaning as in section 28QAA of the Strata Schemes (Freehold Development) Act 1973, and (b) in relation to a leasehold strata scheme, has the same meaning as in section 57AAA of the Strata Schemes (Leasehold Development) Act 1986.
8. As provided by s183(2)(a) of the SSMA 1996, in the present application an order may be made only if the Tribunal considers that the allocation of unit entitlements among the lots was unreasonable when the strata plan was registered or when a strata plan of subdivision was registered
9. The features of the statutory scheme and the requirements for making an order under s183 were considered by the Court of Appeal of the Supreme Court of New South Wales in Sahade v The Owners - Strata Plan 62022 [2014] NSWCA 2008. Inter alia, the Court said: 1. Section 183 (1) confers a power on the Tribunal. There is no explicit indication that there are any particular circumstances in which the power is coupled with a duty to make a particular kind of determination: at [17]. That is, there is a discretion to be exercised. 2. A determination under s183 is a multi-staged process: see Basten JA and Sackville AJA reasons generally, and particularly per Sackville AJA at [68] and at [86] approving the reasons of Santow J in Anderson Stuart v Treleaven [2000] NSWSC 283; 49 NSWLR 88 and the propositions of Santow J set out by Sackville AJA at [62]. 3. There is a statutory precondition to the exercise of the power. In the present case the Tribunal must be satisfied that the unit entitlements among the lots "was unreasonable when the strata plan was registered or when a strata plan of subdivision was registered": at [17]. 4. Section 183(3) identifies one mandatory matter which must be considered, namely the respective values of the lots, in deciding whether the original unit entitlement was unreasonable. The remaining unidentified considerations in subsection (3) are not relevant to the present case as there is no strata development contract in force: at [18]. However, the Tribunal may still have regard to other, non- mandatory considerations in determining whether the original unit allocations were unreasonable: at [86]. For example, there may be other factors that militate against a finding that initial unit entitlements were unreasonable despite a disparity between the values of each lot, such as issues of good governance: at [87]. 5. Lots within a strata scheme are bought and sold based on the unit entitlements registered against each lot: at [33]. The allocation of unit entitlements has both financial consequences and effects who controls the power of management through the Owners Corporation: at [35] and [36]. A consideration of these matters, if relevant, may be necessary in properly exercising any discretion as to whether to make an order reallocating unit entitlements once the original unit allocation is found to be unreasonable: at [47].
10. As is evident from the above, what the Tribunal was required to do was, at least, to have regard to a valuation of the lots at the time the strata scheme was registered. In this regard s183(4) required a certificate to accompany the application for an order that the unit entitlements be reallocated.
11. The valuation and certificate upon which the appellant relied in support of his application for an order to reallocate the unit entitlements was a valuation prepared by Mr McKenzie as at the date of registration of the original strata plan.

Did the valuation and certificate comply with s183(4) of the SSMA 1996?

1. The primary issue raised in this appeal is whether the Tribunal was correct to reject this valuation and certificate on the basis the relevant date for the valuation was the date the plan of consolidation SP71482 was registered and not the date the original strata plan SP 69904 was registered.
2. Section 183(2)(a) provides that the point in time at which the Tribunal must be satisfied that the unit allocation was unreasonable was when "the strata plan was registered or when a strata plan of subdivision was registered".
3. The question is whether this expression means the date on which the original strata plan was registered or the date on which any plan of consolidation was registered. Put another way, is a "plan of consolidation" a "strata plan" or a "strata plan of subdivision" within the meaning of section 183 (2)(a) of the SSMA 1996.
4. In our view, a plan of consolidation SP 71482 is not a strata plan or a strata plan of subdivision within the meaning of s 183. Rather, Strata Plan SP 69904 is the relevant strata plan for the purpose of any application under s183 and the relevant date for the valuation and certificate is the date strata plan SP 69904 was registered namely 27 February 2003.
5. Our reasons are as follows.
6. First, each of the expressions strata plan, strata plan of subdivision and plan of consolidation refer to different plans created pursuant to the relevant legislation.
7. In this regard cl 1(a) of Part 2 of the Dictionary of the SSMA 1996 provides: 1 References to certain documents to be read as references to registered documents A reference in this Act: (a) to a strata plan, a strata plan of subdivision, a strata plan of consolidation or a building alteration plan is a reference to a plan registered as such under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, or (b) to a notice of conversion is a reference to a notice registered as such under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, together with any endorsements required to be made on or any plans and documents required to accompany the plan or notice so registered before it may be registered.
8. Secondly, a consideration of the Strata Schemes (Freehold Development) Act 1973 (SSFD Act), the legislation by which strata schemes for freehold land are created and/or modified, confirms that these plans are different in nature, serve different purposes and that the legislature intended that the expressions have separate and distinct meanings.
9. In this regard, a "strata plan" is one registered under s 7 of the SSFD Act. Section s7(2) of the SSFD Act provides for the subdivision of land by the creation of lots and common property on registration of a strata plan, not being land constituted by lots within the meaning of s5(1) of the SSFD Act or the Strata Schemes (Leasehold Development) Act 1986 (SSLD Act).
10. Strata Plan SP 69904 which was registered on 27 February 2003 is such a plan. As indicated in the registered plan, it was a "Plan of Subdivision of Lot 4 in DP 1037807", that is it was the strata plan by which the original land was subdivided into lots and common property to create a strata scheme.
11. Strata Plan 71482 is not such a plan, as the lots that were consolidated were not "land" within the meaning of that section.
12. Sections 9 of the SSFD Act allows for the subdivision of lots or common property within an existing strata plan. This is done by the registration of a "strata plan of subdivision". Section 9(1) provides: Lots (other than development lots) or common property, or lots (other than development lots) and common property, may be subdivided by registration, as a plan of subdivision, of a plan that complies with subsection (3).
13. For present purposes, the reference to "development lots" is irrelevant as there are no development lots within strata plan SP 69904.
14. Strata Plan SP 71482 is not a strata plan of subdivision because it does not subdivide any property. Rather (as its name suggests) it effects a consolidation of lots
15. Section 12 separately provides for the consolidation of two or more lots into one lot by the registration of "a plan of consolidation".
16. Section 12(1) provides: Two or more lots may be consolidated into one lot by the registration of a plan as a strata plan of consolidation. The plan must be lodged with a separate document in the approved form relating to the plan.
17. Clearly what has occurred by the registration of Strata Plan SP 71482 is the creation of Lot 28 which represents a consolidation of former Lots 20, 24 and 25. That is, it is neither a "strata plan" nor a "strata plan of subdivision"
18. Thirdly, having regard to the fact that the relative unit entitlements are not altered on the registration of a plan of consolidation, it is unlikely that legislature intended s183 should operate in a manner: 1. to prevent an aggrieved lot owner from challenging as unreasonable the initial allocation of unit entitlements upon registration of the strata plan merely because a plan of consolidation had been filed; or 2. to give rise to a review of unit entitlements merely because two or more lots were consolidated into one lot.
19. An examination of the various requirements for registration of a strata plan, strata plan of subdivision and plan of consolidation confirms this position.
20. In the case of a strata plan registered pursuant to s7 of the SSFD Act, s8(1) requires the plan intended to be registered to include a schedule of unit entitlements.
21. This is because an initial allocation must be made between the various lot owners.
22. Similarly, in the case of a strata plan of subdivision, ss 10 and 11 of the SSFD Act provide for the preparation of a schedule of unit entitlements in respect of existing lots and the lots proposed to be created by subdivision of lots or common property which must accompany any strata plan of subdivision.
23. This is because by reason of the subdivision of lot and common property there is a need to change the proportional entitlements because of a change of the relative lot ownership for each lot when considered as a portion of the whole.
24. In either case, the SSMA 1996 expressly recognises a right to bring an application for an order to reallocate unit entitlements between the lot owners on the basis the allocation proposed was unreasonable.
25. However, in the case of the registration of a plan of consolidation there is no requirement under the SSFD Act for the preparation of a schedule of unit entitlements in respect of the consolidated lot and the existing lots under the SSFD Act. Rather, all that is required is for a plan to be lodged with a separate document "in the approved form relating to the plan".
26. As pointed out by the appellant in his submissions by reference to the Registrar General's Direction, the unit entitlement for a new lot created by the plan of consolidation is the sum of the unit entitlements for the lots which were consolidated.
27. Because there is no relative adjustment of landholdings within the strata scheme between the owner of the consolidated lot on the one hand and the other owners on the other, there is no need for the creation of a new schedule of unit entitlements. Consequently no occasion would arise by reason of the registration of a plan of consolidation which would necessitate a review by the Tribunal under s183.
28. Accordingly, the Tribunal was in error in concluding the valuation and certificate of unit entitlements prepared by Mr McKenzie was not prepared at the correct date.
29. However, for the reasons set out below, that does not mean that the orders made by the Tribunal should be set aside and the matter remitted for rehearing. Although the Tribunal concluded (incorrectly as we have found) that the valuation of Mr McKenzie was prepared at the wrong date, it also went on to consider whether or not the evidence provided by him otherwise established that the allocation of unit entitlements was unreasonable. Unless this aspect of the decision is disturbed, it would be futile to remit the matter for further hearing. For it is "only if" the allocation was unreasonable that the discretion is enlivened: s 183(2) of the SSMA 1996. On the other hand, if the initial unit entitlement was unreasonable, a further hearing would be required to deal with the discretionary matters identified in Sahade and determine what, if any, reallocation should be made.

Was the Tribunal correct to conclude the evidence did not prove the initial unit allocation was unreasonable?

1. At [39]-[42] the Tribunal said: 39 Mr Tan, despite his lack of corroborative evidence also raises in his cross-examination of Mr McKenzie the discrepancy between the value attributed between the same lots in the same position in the building, the south-west corner, Lot 1 on level I with 146 square metres, Lot 8 on level 2 with 107 square metres and Lot 15 on level 3 with 113 square metres. Mr McKenzie has valued each of those lots as follows: Lot Number Valuation Initial UE Proposed UE 1 $455,000 40 36 8 $485,000 37 38 15 $450,000 35 37 40 Mr McKenzie was unable to justify the discrepancy. 41 To grant the orders sought by the applicant, the Tribunal must be satisfied that the allocation of unit entitlements was unreasonable when the strata plan was registered. 42 The Tribunal is not satisfied that the evidence adduced by the applicant supports the Tribunal making a finding that the allocation of unit entitlements at the time when the strata plan was registered was unreasonable. The expert evidence relied upon by the applicant is for the reasons set out above not at the correct date and cannot be relied upon to support the applicant's case. Further, the evidence has been challenged in cross-examination of Mr McKenzie and he has not been able to support his contention as to Lots 1, 8 and 15. He has not inspected individual units and cannot satisfy an enquiry as to how he comparatively values one lot from another lot under any scrutiny. Mr Rennie's expert evidence is compromised and in any case only values part of the lots in the scheme and cannot be relied upon to challenge the reasonableness of the initial allocation of the unit entitlements.
2. It seems clear from these reasons that, in addition to its finding that the valuation was not at the correct date (a matter which we have concluded was wrong at law), the Tribunal has in any event considered the valuation evidence and rejected the evidence of value because Mr McKenzie was not able to substantiate his opinions in relation to Lots 1, 8 and 15.
3. At this point it is important to note the Appeal Panel was not provided with a sound recording of the hearing. However, the appellant accepted that in cross-examination his expert, Mr McKenzie, had not been able to explain his opinion as to the value of Lots 1, 8 and 15 as was recorded in the Tribunal's reasons.
4. The appellant raises two grounds of appeal in relation to the conclusion concerning the expert evidence. One was that he was denied procedural fairness. The other was that the Tribunal reached an incorrect conclusion in respect of the valuation evidence. The first raises a question of law. The second does not raise a question of law and requires leave to appeal.
5. As to the procedural fairness ground, the appellant says he was told at an earlier directions hearing that cross-examination of his witness would not be permitted because only "an Expert witness could only be challenged by another expert witness and that the Tribunal would not accept a challenge to an Expert Witness by a layperson". However, again no sound recording was provided of this directions hearing.
6. Be that as it may, it is clear from the appellant's submissions to the Appeal Panel that he was provided with an opportunity at the original hearing to make submissions concerning his expert's evidence and the answers given by his expert in cross-examination. In these circumstances, we do not accept the appellant was denied procedural fairness or that the Tribunal made any error of law in the manner in which the hearing was conducted.
7. The final question to consider is whether the decision of the Tribunal on the factual question of whether the original unit allocation was unreasonable was in error and whether or not leave to appeal on this question should be granted.
8. The appellant, in his notice of appeal, does not seek leave to appeal on a question other than a question of law. However, in circumstances where a party is self-represented, in may be necessary for the Appeal Panel to consider the nature of the issues raised and properly categorised these issues for the purpose of determining whether or not leave is required: see Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12].
9. To the extent necessary, we would give leave to amend the Notice of Appeal to seek leave. This approach is consistent with the guiding principle in s36 of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in dispute. As the issue was otherwise raised by the appellant in his submissions, the grant of leave to make formal amendments could not give rise to any relevant prejudice to the respondents who have provided submissions in response.
10. In the present case, the grant of leave to appeal requires the appellant to show he may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or was against the weight of evidence. As stated by the Appeal Panel in Collins at [76], this requires the appellant to satisfy the Appeal Panel that: 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 circumstances in (a) or (b) not occurred…
11. As to whether a decision is not fair and equitable or was against the weight of evidence, the Appeal Panel went on to say in Collins and [77]: 77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153].
12. As stated in Sahade, a mandatory requirement for the Tribunal to consider in deciding whether or not the original unit entitlement was unreasonable is the respective values of the lots at the time of the strata plan was registered. As is evident from the legislation to which we have referred above and from what the Court of Appeal said in Sahade, this evidence is used to determine the relative values of the Lots and is a consideration which must be taken account of in determining whether the particular unit entitlement allocations are unreasonable.
13. Where an expert is unable to justify the basis for the valuation of each Lot or some of the lots within a strata scheme, it was an available conclusion for the Tribunal to find the applicant had failed to establish the original unit entitlements were unreasonable.
14. While there was other evidence at the original hearing from Mr Rennie, this evidence was prepared at a different point in time and, more particularly, did not provide relevant evidence of the valuations of Lots 1, 8 and 15 or their relative values. Accordingly, it does not assist the appellant to show error on this aspect of the Tribunal's decision.
15. In reaching this view we have not had recourse to the subsequent report prepared, for the purposes of this appeal, by Mr Rennie. As mentioned above (at [18]) it was conceded that this evidence could have been provided at the first instance hearing. Accordingly, it was not "new" evidence (being evidence that was not reasonably available at the time of the first instance hearing), as required by Sch 4, cl 12(1)(c) of the NCAT Act.
16. Further, while this issue was not dealt with by the Tribunal at first instance, the evidence from Mr Rennie (to which we were referred on appeal and which was before the Tribunal at the original hearing) suggests that Mr McKenzie was also in error in his valuation of Lot 21 and consolidated Lot 28 and his assessment of equal unit entitlements. Again while the evidence of Mr Rennie related to a valuation at a different point in time (namely the time the plan of consolidation was registered), nonetheless Mr Rennie's valuation points to differing features between the two lots, including the use of the properties, number of available parking spaces and their position to street frontage which suggest that Lots 21 and 28 should not have been ascribed the same value. This evidence does not support a conclusion that the original unit allocations as provided in the schedule of unit entitlements recorded in Strata Plan SP 69904 on registration were unreasonable. It does not support the appellant's valuation. This is for the reason that those Lots which became consolidated Lot 28 were of greater value than Lot 21 and should have had allocated a relatively higher unit allocation to that of Lot 21, not an equal unit entitlement as proposed by the appellant and his expert.
17. In these circumstances, the Tribunal's decision that the appellant had failed to show the original unit allocation was unreasonable could not be said to be against the weight of evidence nor could it be said to be not fair and equitable. It follows that we are not satisfied upon a consideration of the evidence as a whole that the appellant may have suffered a substantial miscarriage of justice or that the decision was wrong in fact.
18. Accordingly, leave to appeal should be refused and the appeal should be dismissed.

Orders

1. The Appeal Panel makes the following orders: 1. Leave is given to the appellant to amend the Notice of Appeal to seek leave to appeal. 2. Leave to appeal is refused and the appeal dismissed. 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: 22 May 2017