Musumeci v The Owners - Strata Plan No 11583

1. The background to these proceedings is that Ms Musumeci, together with the two natural persons who are respondents, are owners, together with two other owners, in a five lot strata scheme at Forster. Disputes have arisen between Ms Musumeci and the other owners as to the proper administration of the strata scheme.

The proceedings in the Consumer and Commercial Division

1. On 7 April 2024, Ms Musumeci, as the applicant, commenced proceedings 2024/00289553 against the owners corporation which she named as The Owners Corporation - SP11583, Mary Buckley, Caroline Croft and Christopher Farncomb in the Consumer and Commercial Division.
2. On a date that does not appear in the evidence, the Tribunal dismissed an application for interim orders by Ms Musumeci. In the context of that interim application, Ms Musumeci relied upon her affidavit of 20 August 2024.
3. On 13 September 2024, the Tribunal, constituted by Senior Member D Robertson, made procedural directions for the hearing of the matter and relevantly required Ms Musumeci to lodge and serve points of claim, and the documents on which she intended to rely at the hearing of the substantive matter.
4. On 23 October 2024, Senior Member G Ellis SC made procedural directions extending the time for compliance with the orders made on 13 September 2024.
5. Ms Musumeci lodged documents in support of her application on 1 November 2024 comprising 50 pages. In those pages were her points of claim and her affidavit of 20 August 2024 excluding the annexures. As will be seen, that material was before Senior Member Ellis who heard the case.
6. On 11 February 2025, the hearing took place before Senior Member Ellis and he delivered his decision on 19 February 2025. In that decision the Senior Member, relevantly:

(1) in paras 1 and 2, set out his outline of the proceedings, being an application under s 237 of the SSM Act;

(2) in para 3, dealt with the history of the proceedings, including the rejection of the interim application on 13 September 2024;

(3) in para 4, found he had jurisdiction;

(4) in paras 4 to 9, dealt with the hearing;

(5) in paras 10 to 12, set out the documents received into evidence;

(6) in paras 13 to 18, described the cross-examination that took place;

(7) in paras 19 to 23, set out the submissions of Ms Musumeci, the submissions of the owners corporation and Ms Buckley, and the submissions in reply of Ms Musumeci;

(8) in paras 24 to 30, set out the law;

(9) in paras 31 to 46, dealt with the submissions made by the parties and in particular Ms Musumeci. In para 32, he set out the seven matters in the points of claim which Ms Musumeci had raised and in paras 33 to 43 dealt with those matters. In para 44, he found that neither individually or collectively did they show that the scheme was not functioning or not functioning satisfactorily, and found that there had not been any failure to repair and maintain the common property, and therefore, in para 46, there was no basis for an order for the appointment of a strata managing agent;

(10) in paras 47 and 48, found that Ms Musumeci had not provided evidence required under s 237(4) and (5) of the SSM Act, being a consent letter from the proposed strata managing agent, the licensed details for that agent and a copy of the proposed terms and conditions;

(11) in paras 49 to 54, dealt with matters in terms of estoppel, which do not arise in this appeal;

(12) in para 55, set out his orders dismissing the application.

1. On 18 March 2025, Ms Musumeci filed a notice of appeal and before us today, on the hearing of the appeal, she represented herself. Mr Farncomb, who is the treasurer of the owners corporation, appeared on its behalf and in his own right, and Ms Buckley appeared in her own right.
2. At the commencement of the hearing, we made a consent order amending the name of the first respondent to The Owners - Strata Plan No 11583.
3. Ms Musumeci relied on the following four lots of documents:

(1) firstly, a bundle of documents lodged on 29 April, 2025;

(2) secondly, a bundle of documents lodged on 9 May 2025;

(3) thirdly, a bundle of documents lodged on 27 June 2025;

(4) fourthly, documents attached to an email sent to the Registry on 4 July 2025.

1. The respondents relied on a bundle of documents lodged on 13 June 2025. They were sent to Ms Musumeci by email. She said she had not printed out the documents. They were also sent to her in hard copy to her post office box and she said she had not collected them. When asked by the Appeal Panel whether she had made any complaint about the documents not being served, she said she made no complaint.
2. Additionally before us, there are the documents from the Consumer and Commercial Division (the application; the orders of 7 August 2024, 13 September 2024, and 23 October 2024; and the decision of 19 February 2025), together with the respondents' reply to appeal and the orders made by the Appeal Panel.
3. Ms Musumeci made oral submissions in support of the appeal, and we did not call upon the respondents to make any submissions.

1. The scope of internal appeals is set out in s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). In substance, an appellant has a right to appeal on a question of law and otherwise can seek leave to appeal. The grounds for leave to appeal are found in cl 12 of Sch 4 of the NCAT Act. In substance, they provide that an appeal panel has a discretion to grant leave to appeal where an appellant may have suffered a substantial miscarriage of justice on one or more of three grounds. Firstly, that the decision was not fair and equitable. Secondly, that the decision was against the weight of evidence. Thirdly, that fresh evidence has arisen which was not reasonably available at the time of the hearing. Apart from being satisfied on one or more of those three matters, an Appeal Panel has a discretion whether to grant leave to appeal. The principles that are applied by the Appeal Panel in determining whether to grant leave to appeal were set out in the decision of Collins v Urban [2014] NSWCATAP 17 at [84]. Those principles have been applied in many decisions of the Appeal Panel since that decision.
2. We should also mention that where, as here, an appellant is not legally trained or qualified, the Appeal Panel will do the best it can to discern from the material before them as to whether the material raises a question of law.

1. Ms Musumeci indicated that the grounds of her appeal were summarised in the reply to appeal documents lodged on 27 June 2025. There are five matters that she has raised by way of her grounds to appeal.
2. It appears to us that Ms Musumeci seeks to raise a question of law in respect of four matters. The first matter is a failure to afford procedural fairness by reason of the manner in which Senior Member Ellis conducted the hearing and, in particular, having prevented her from addressing or giving evidence on relevant matters. Secondly, a denial of procedural fairness by not taking into account the annexures to her affidavit of 20 August 2024. Thirdly, a constructive failure to exercise jurisdiction by not investigating her complaint under s 71 of the NCAT Act. Fourthly, a constructive failure to exercise jurisdiction by not dealing with the other matters in the points of claim.
3. We are satisfied that there is clear authority in the Supreme Court judgment in Donohoe v Albulario [2025] NSWSC 9 at [36]- [39] that a failure to afford procedural fairness raises a question of law. There is also clear authority in the decision of the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [32(4)] that a constructive failure to exercise jurisdiction raises a question of law.
4. The fifth matter is the complaint of Ms Musumeci that there is fresh evidence that she wishes the Appeal Panel to take into account. That matter gives rise to a question of leave to appeal.

1. We will firstly deal with the questions of law. The first one is whether there was a failure by the Tribunal to afford procedural fairness to Ms Musumeci by reason of the manner in which it conducted the hearing. Ms Musumeci has provided for the purpose of this appeal a partial transcript of the hearing conducted on 11 February 2025. In several respects, the transcript is an unsatisfactory document because it includes commentary by Ms Musumeci on the hearing rather than just a plain transcript.
2. It is clear for there to be a denial of procedural fairness that there must be a failure by the Tribunal to enable the appellant or person appearing to properly present their case and it has to be material to the decision that was made. It is quite clear that - this is on page 139 of the submissions in reply - the Senior Member identified the material before him, being pp 1 to 50 of the documents lodged by Ms Musumeci. Ms Musumeci in her commentary says, "Cut off unable to add including my affidavit." It is quite clear that in the succeeding material, the Senior Member said, "Now looking for the signed witness statements, statutory declarations or affidavits we said we have one from the applicant."
3. We are not satisfied on the basis of looking at the transcript as a whole that there was evidence before the Senior Member, which he failed to take into account and that Ms Musumeci was cut off. Even if a correct understanding of the transcript is that she was cut off, we are not satisfied that the denial of procedural fairness was material to the outcome or is relevant to the appeal. A letter from a solicitor as to the proper construction of s 106 as compared to s 108 could not be determinative as to the proper construction of those sections of the SSM Act. When we invited Ms Musumeci to address the proper construction of those sections on the appeal, she said that her understanding was that the painting because it changed the colour required a special resolution rather than an ordinary resolution. She cited no authority in support of that proposition.
4. So, even if we had of been satisfied that there was a failure to afford procedural fairness, in the sense of her being cut off, we are not satisfied about the second requirement that it be material to the outcome. And so for that reason, we are not satisfied that there was any error on a question of law.

1. The second error on a question of law is Ms Musumeci's complaint that the Senior Member did not take into account the annexures to her affidavit of 20 August 2024. We have already indicated the orders made on 13 September 2024. The materials lodged by Ms Musumeci on 1 November 2024 included the affidavit but not the annextures. If Ms Musumeci wished to rely upon those annexures for the hearing of the substantive application, they needed to be served in accordance with the orders. Her explanation when we asked about them was that it was her understanding that they did not have to be served and she decided not to attach them because she did not wish to burden the Tribunal with extra paper.
2. We accept that this was the understanding of Ms Musumeci, but there was a clear non-compliance with the orders made and in those circumstances, we do not see any error by the Senior Member in not allowing that material into evidence.

1. As to the first alleged constructive failure to exercise jurisdiction, it is true that in her points of claim, the appellant in point 3 asserted "Respondent's submissions lodged Refer 11.10.24 Request for extension of time summarising these submissions", and there is a reference to s 71 of the NCAT Act. It is not entirely clear from the points of claim what was the allegation made by Ms Musumeci. But, to the extent that she was alleging that those submissions constituted an offence under s 71 of the NCAT Act, it is clear that this is a matter which did not arise before the Senior Member.
2. Section 71 of the NCAT Act creates an offence of false and misleading statements; that is a criminal offence of providing information in proceedings before the Tribunal that is false and misleading in a material respect. The Tribunal has no jurisdiction to determine whether a criminal offence under s 71 has been committed. And to that extent, there can be no failure on the part of the Senior Member to exercise the jurisdiction of the Tribunal by not determining that question.

1. The second matter of a constructive failure to exercise jurisdiction arises from the complaint of Ms Musumeci that the Senior Member did not deal with matters in her points of claim arising out of the extraordinary general meeting on 11 April 2024, the quotes for painting and other matters. As I have indicated, the Senior Member in para 32 of his decision, set out the seven matters which arose before him on the hearing of the application. A fair reading of those seven matters indicates that he had regard to the matters raised in the points of claim. In paras 33 to 42, he dealt with those seven matters in turn.
2. We are not satisfied on the basis of the decision before us that there was a constructive failure to exercise jurisdiction by not dealing with the matters that were raised by Ms Musumeci. For those reasons, we are not satisfied that there was any error made by the Senior Member in answering a question of law.

1. The last matter raised by Ms Musumeci goes to leave to appeal on the basis of new evidence or fresh evidence. That is the ground that is set out in cl 12(1)(c) of Sch 4 of the NCAT Act. The ground on which that material might be admitted is that it constitutes significant new evidence, being evidence that was not reasonably available at the time the proceedings under appeal were dealt with. The new evidence that Ms Musumeci seeks to rely on is relevantly set out as follows:

(1) firstly, in section 4 of her documents that were lodged at the Newcastle registry on 9 May 2025;

(2) secondly, further documents in her submissions in reply;

(3) further documents again in her email of 4 July 2025;

(4) documents relating to the appointment of a strata managing agent that she referred to in the hearing room today that were not served on the respondents.

1. It is clear from the material in section 4 of the submissions, that most of the documents on which Ms Musumeci seeks to rely were brought into existence after the decision of the Senior Member. There are a couple of documents being a notice of pest control and a notice of an end of management period which were brought into existence before the decision; the second one of those documents after the hearing on 11 February 2025.
2. The documents in the submissions in reply, again, substantially appear to have been brought into existence after the decision on 19 February 2025 as were the documents attached to the email of 4 July 2025 being photographs and a quotation.
3. To the extent that the documents were brought into existence prior to the decision, we are not satisfied that the documents meet the test set out in the case of Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 (Al-Daouk) at [23], where the Appeal Panel said:

"The test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence."

1. We are not satisfied on an objective test that the documents that existed before the decision on 19 February 2025 were unavailable in the sense described in Al-Daouk.
2. To the extent that the majority of documents, and that includes the consent terms of the strata managing agency agreement that was proposed, and the license details of the proposed agent, were created after the decision, we are not satisfied that they constitute significant new evidence. They go matters of which Ms Musumeci complains that have occurred since the decision, and the decision was directed to whether there was relevant non-functioning or partially non-functioning of the scheme as at the date of the decision.
3. For those reasons, we refuse to permit Ms Musumeci to rely on that material and refuse to grant leave to appeal.

1. We should also point out that in the submissions in reply, Ms Musumeci has asked questions, "What is the Tribunal's definition of dysfunctional OC?", "What is the Tribunal's definition of S108 SSMA?" "What is the Tribunal's definition of false and misleading?", "What is the Tribunal's definition of S108 SSMA?". Simply to ask questions is not to raise a ground of appeal and does not demonstrate any relevant error.
2. To the extent that Ms Musumeci does raise the issue of whether the Senior Member misinterpreted ss 106 and 108 of the SSM Act, we repeat, we are not satisfied from anything that she has said that the Senior Member misconstrued those sections, or misapplied them in the content of the facts before him.

1. For these reasons, we make the following orders:

(1) The name of the first respondent is amended to The Owners - Strata Plan No 11583.

(2) To the extent that the appeal raises questions of law, the appeal is dismissed.

(3) To the extent that the appellant seeks leave to appeal, leave to appeal is refused.

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.