Noor v The Owners - Strata Plan No 72939 - [2023] NSWCATAP 236 - NSWCATAP 2023 case summary — Zoe

NSWNSWCATAP

Noor v The Owners - Strata Plan No 72939

[2023] NSWCATAP 236

NCAT Appeal Panel|2023-07-31|Before: Blake AM

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2023-07-31

Before

Blake AM

Source

Original judgment source is linked above.

Judgment (31 paragraphs)

[1]

Introduction

This preliminary matter concerns the 6 July 2023 Noor application and the 19 July 2023 Noor application. It is convenient to deal with these applications separately. As to the 6 July 2023 Noor application it will be necessary to refer to the conduct of the hearing before the Tribunal and summarise the submissions of the parties. The 19 July 2023 Noor application can be disposed of summarily because it is misconceived.

[2]

The 6 July 2023 Noor application

In the 6 July 2023 Noor application, the owner seeks to add to the notice of appeal the failure of the Tribunal to determine a claim of $23,079.75 for damages for the period from 26 February 2022 to 22 May 2023 for the breach of s 106(1) of the SSM Act by the owners corporation, and relevantly provided the following explanation: "I have previously sought leave of the tribunal to add the additional compensation claims based on the additional year that had passed and to avoid any claim by the respondent of Anshun Estopple, I filed my request on the 8th of Feb 2023 for the final hearing date being the 17th of Feb 2023. At the hearing Senior member Paull did address the request for leave of tribunal to add the additional compensation claims but she rejected it after a lengthy discussion and objection from the respondent that they were denied procedural fairness in submitting evidence and ability to respond. The Respondent then submitted a Miscellaneous application filed on the of Feb 2023 to re-open the case to adduce more evidence therefore we submitted in my response to the Miscellaneous application another request seeking leave of the tribunal to then add the additional compensation costs for the hearing dated the 22nd of May 2023. The respondent had 2.5 months then to request any documentation, summons information and produce and submit evidence but they did not. Additionally Senior member Paull didn't address this request in the hearing either. So, we are now in a position whereby the Breach of s106(1) has still not been repaired by the Owners of 5P72939 and the mould conditions are still going, and my husband cannot still use the office. So, I am seeking leave of the Appeal Tribunal to add the additional compensation claims so as to ensure we are bringing all costs to the final hearing and not be put into a position of Anshun Estopple should we pursue the owners at a later date or out of time for the 2 year limitation. The Repair orders sought are still as per original NCAT application and in previous submissions which will be in the submissions to be filed on the 7th of July 2023 …"

In the owners corporation's supplementary appeal submissions, the owners corporation opposed the 6 July 2023 Noor application for the following reasons: "Firstly, the Appellant did not, on 24 February 2023 in the below proceedings, file a Miscellaneous Application seeking leave to amend the compensation claim in the Tribunal proceedings below. Instead, the Appellant tacked on a request to increase her compensation claim at the end of responding to the Respondent's Miscellaneous Application to adduce further evidence. Accordingly, there was no proper application before the Tribunal; Secondly, in any event, the tacked on application was a repeat of an earlier application by the Appellant made on the second day of hearing on 17 February 2023 (7 days earlier) to increase the compensation claim. That application to amend was denied by the Tribunal below on 17 February 2023 and it was argumentative of the Appellant to re-make the application. Having already rejected the same application, the Tribunal below was functus officio in respect to any further application. Enclosed is a copy of the transcript of the relevant part of the second day of the final hearing in which the Tribunal rejected the amendment application (page 7, lines 28 - 48). Thirdly, the time for the Appellant to appeal the Tribunal Member's decision below on 17 February 2023 to refuse the amendment application expired on 17 March 2023. No such appeal was brought and no grounds have been advanced in support of a grant of extension of time of some 4 months. Further, assuming the Appellant has a valid claim, she ought to have commenced fresh proceedings (which is what she was told by the Tribunal below); Fourthly, the Appellant's prospects of success on the further compensation claim are poor and does not warrant a grant of leave. Even on the Appellant's own case (which is disputed), she became of her loss by no later than November 2019 (see paragraph 9 of Section 5B of the Appellant's Grounds of Appeal). By the time of her purported application on 24 February 2023, the new claim was out of time by approximately 15 months as per the decision in The Owners - Strata Plan No 74232 v Tezel [2023] NSWCA 35; Fifthly, the grant of the leave sought will require both parties to put on evidence about the new claims and a contested factual hearing conducted. This would be a barrier to the appeal proceedings being heard and determined and will not result in a just, quick, and cheap resolution of the appeal and instead will substantially prolong and complicate the appeal."

[7]

Conclusion

We are satisfied that each of grounds of appeal 1 to 6 raise the following questions of law and accordingly the owner has an appeal as of right under s 80(2)(b) of the NCAT Act in respect of these grounds of appeal by reason of the application of principles in Alexandria Landfill at [22]: 1. as to ground of appeal 1, whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider her application for an order that the owners corporation repair the common property; 2. as to ground of appeal 2, whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider her application for an order that the owners corporation repair the damage to her lot; 3. as to ground of appeal 3, whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider her application for an order that the owners corporation is liable for aggravated or exemplary damages; 4. as to ground of appeal 4, whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider her application for an order that the owners corporation is liable for damages for the cost of work to repair damage to her lot; 5. as to ground of appeal 5, whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider her application for an order that the owners corporation is liable for damages for the cost of work to mitigate damage to her lot; 6. as to ground of appeal 6, whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider her application for an order that the owners corporation is liable for damages for medical and other out of pocket expenses.
We are not satisfied that that each of grounds of appeal 7 to 12 raise a question of law and accordingly the owner does not have an appeal as of right under s 80(2)(b) of the NCAT Act in respect of these grounds of appeal for the following reasons: 1. as to grounds of appeal 7 and 8, this is a not question of law as they involve the contention that the Tribunal made a wrong finding of fact; 2. as to ground of appeal 9, this is a not question of law as it involves a conclusion of mixed fact and law arising from the wrong application of the correct principles to the facts; 3. as to grounds of appeal 10 and 11, this is a not question of law as they involve the contention that the Tribunal made a wrong finding of fact; 4. as to ground of appeal 12, this is not question of law as it involves a generalised complaint about the 22 May 2023 dismissal order.

[8]

The nature of an appeal under s 80(2)(b) of the NCAT Act

In Bimson at [40]-[41], Beech-Jones J made the following observations when considering an appeal under a statute which conferred a right of appeal "on a ground that involves a question of law alone": "[40] This leads to the second proposition, namely that, ultimately it is incumbent on the parties contending that a question of law was decided erroneously, to identify the question and to do so in abstract terms. Thus in Williams v R [1986] HCA 88; 161 CLR 278 at 287 ("Williams"), Gibbs CJ stated: "... there is 'a question of law alone' if the question of law can be stated and considered separately from the facts which it may be connected in a given case." (see also 314 per Wilson and Dawson JJ.) [41] If that task is undertaken, then the consequential questions that will arise are whether the lower court or tribunal either answered that question or proceeded on an assumption concerning that answer, whether its answer or assumption was correct or incorrect, and whether that answer or assumption was material to the outcome, in the sense that it could have affected the outcome (see Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 per Mason CJ; Mark Aronson and Matthew Groves Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013, at [4.270]))."
The Appeal Panel has determined that, except when it conducts a new hearing under s 80(3), an appeal under s 80(1) of the NCAT Act involves a rehearing in the sense of conducting a rehearing on the materials before the Tribunal to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error and, in some cases, has power to receive additional evidence. Although the appeal is described as being "by way of rehearing", it does not call for a fresh hearing and the Appeal Panel does not hear the witnesses again": Yuen v Thom [2016] NSWCATAP 243 at [14]-[22].
We consider that the approach in Bimson at [40]-[41] should be applied in determining whether the Tribunal made an error on a question of law under s 80(2)(b) of the NCAT Act. If we are satisfied that the Tribunal made one or more material errors of law, then it will be necessary to determine whether to undertake a rehearing on the material before the Appeal Panel or remit the proceedings for further consideration by the Tribunal.
We consider that the approach in Collins at [76], [77] and [84] should be followed in determining whether leave to appeal should be granted in respect of grounds of appeal 7 to 11. If leave to appeal should be granted, then it will be necessary to determine whether to undertake a rehearing on the material before the Appeal Panel or remit the proceedings for further consideration by the Tribunal.

[12]

The relevant evidence relating to the conduct of the hearing

On or about 3 December 2021, the owner served her undated statement (the undated Ms Noor statement) in which she sought the following orders (on page 4): "1. That the Tribunal find the Owners of SP72939 in breach of section 106(5) of the Strata Schemes Management Act 2015 (5) 2. That the Tribunal order that the Owners affect immediate repair of my unit (406) and if possible that of Peter Morphew's unit (408) 3. That the Tribunal order all consequential damage be repaired or replaced in the affected room such as carpet replaced, damaged gyprock cut out and replaced, damaged skirting and kick panel under the window replaced, all walls and ceiling cleaned to remove any settled mould spores, painting, removalists to remove all furniture belonging to the room and store it until repairs are completed. 4. That the Tribunal order that the Owners pay for the preventive measures taken by me to protect my apartment to reduce the amount of water ingress entering my apartment and that of apartment 407, before repairs commence to allow full access to the balcony and window area needed by the builders to effect repairs. This is outlined on pages 151 - 155 of this statement. 5. That the Tribunal confirm in its orders that I am exempt from costs, levies and any special levies that may arise if I am successful as per section 104 of the Strata Schemes Management Act 2015 (50); 6. That the Tribunal consider and approve my compensation claims included in this statement."
On 10 May 2022, at a directions hearing: 1. the following exchange took place between General Member De Jersey and Mr Noor (Tcpt, 10 May 2022, p 6(9)-(24)): "GENERAL MEMBER: ... What I want to know from the applicant and what I said before I asked you the question was, there doesn't seem to be indicated on any set of directions exactly what orders you're asking for. I want to know the orders that you're asking for on your substantive application. NOOR: The orders is to find that the owners corporation are in breach of s 106(1). GENERAL MEMBER: Yes, that's the declaration or a finding. I want to know what orders. What are you asking the Tribunal to order against the respondent?" 1. Mr Noor then proceeded to outline claims for damages totalling $28,959.44 (Tcpt, 10 May 2022, pp 6(26)-9(34)).
In her Outline Submission dated 6 September 2022, the owner relevantly stated: "I am seeking that NCAT find the Owners of SP 72939 are in breach of s106(1) of the SSMA 2015 and that they pay compensation under s 106(5) for loss of rent and that they also pay compensation for allowing us to continue to live in an unhealthy environment which has now caused us to have health issues …"
On 16 September 2022, at the commencement of the hearing: 1. the following exchange took place between Senior Member Paull and Mr Noor (Tcpt, 16 September 2022, p 15(37)-(44)): "SENIOR MEMBER: I just want to clarify why we're here today. We're here today because you're seeking the loss of rental of that one bedroom that you use as an office which you say you had an agreement with your wife to pay money in various forms by way of strata and you didn't pay it or your business didn't pay it because you stopped using the office, is that right, and that's the only reason we're here today? NOOR: That and other damages that we've suffered from-" 1. Mr Noor then proceeded to outline claims for damages (Tcpt, 16 September 2022, pp 15(50)-22(2)); 2. the following exchange then took place between Senior Member Paull, Mr Ton and Mr Noor (Tcpt, 16 September 2022, pp 22(4)-23(7)): "SENIOR MEMBER: That's given me a bit of an outline, thank you very much, I appreciate it. Can I just have an outline from you Mr Ton? TON: Yes. Can I say, I'll try to shorten things a bit. My client does agree that the work order can and should be made. SENIOR MEMBER: Does your client agree that it's in breach of its obligation to repair? TON: Yes. I'll explain. … SENIOR MEMBER: I have to find there's been a breach of its obligation? TON: Yes. SENIOR MEMBER: Do I have to go on and find that or are you saying there's a concession? TON: There's a concession from my side that a work order can be made today or at the end of the hearing for my client to engage contractors- SENIOR MEMBER: I don't have an application before me for a work order, do I? I just have an application for compensation. TON: If that's the case, then I'm happy just to say my client accepts it has to do work. SENIOR MEMBER: Tell me if I'm wrong, when I look at 106, it's an obligation on the owners corporation to repair and maintain common property. TON: Yes. SENIOR MEMBER: There's a sub-paragraph that says if they're in breach of that, there can be compensation claimed. TON: Yes. SENIOR MEMBER: I'm dealing just with the compensation claim. NOOR: Our application is- SENIOR MEMBER: Will you let me finish? NOOR: Sorry. SENIOR MEMBER: All I'm asking you, and it's a straight out question and it deserves a straight out answer. Do I have to hear evidence to find if there is a breach or is there a concession? There was a breach but there's a dispute as to the compensation claim? TON: There's a concession there's a breach. …"

[15]

Consideration

We are satisfied that the owner did not abandon her claims for orders 2 and 3 in the undated Ms Noor statement. It is unnecessary to determine whether Mr Noor was interrupted on 16 September 2022 in informing the Tribunal that the owner was seeking a work order. Notwithstanding that Mr Noor throughout the conduct of the hearing did not refer to a work order being sought by the owner, it was incumbent on the Tribunal in view of the statement of the orders being sought in the undated Ms Noor statement to ascertain whether they were still being pressed, particularly as Mr Noor was not a legal practitioner. By not considering these claims the Tribunal constructively failed to exercise its jurisdiction.
For this reason, grounds of appeal 1 and 2 are made out.
In Glenquarry, there was appeal to the Supreme Court of New South Wales relevantly against an order made by the Appeal Panel of the Tribunal for the replacement or repair certain specified parts of the common property in the following terms (at [100]): "[100] The order made by Senior Member Ross, and which is challenged by the majority owners, is in the following terms: (8) The Owners Corporation SP 17043 must, in a proper and workmanlike manner, on or before 31 August 2019, carry out repairs to the common property to: (i) Remove chimney stack on northern tiled roof (ii) Replace flashing on northern tiled roof (iii) Replace metal roofing and guttering on southern roof (iv) Replace the lift in the existing shaft and associated works (v) Repair the driveway bridge (vi) Repair or replace the brick ties and loose bricks (vii) Repair and paint the eaves (viii) Repair or replace and paint external timber (ix) Replace the balcony roof to unit 1 (x) Retile the driveway, main external entrance area and parking pad (xi) Paint and recarpet the main foyer and stairwell (xii) Replace both front doors and ground floor door with fire compliant glass (xiii) Replace the faulty intercom (xiv) Repair the path and drainage on ground level (section of western path outside unit 5) and repair broken gas pipe under western path (xv) Repair the seawall"
Parker J at [104], [111]-[114] made the following observations: "[104] As Senior Member Ross acknowledged, the orders did not specify the works in question. Orders in this form gives rise to two particular problems. The first is that the orders leave it unclear what it is that the Strata Corporation is being ordered to do. The second is that the order are not necessarily confined to complying with the Strata Corporation's obligations under SSMA s 62." "[111] Senior Member Ross appears to have considered that the majority owners are responsible for the impasse about repairing the building. But on any view the Tribunal is not entitled to order an owners' corporation to do things just because the Tribunal considers it desirable to do so. If, as seems to have been assumed, the justification for the order was that the Strata Corporation had not complied with its obligations under s 62, then the Tribunal's order could go no further than the minimum necessary to comply with that obligation. [112] In the present case, the Tribunal did not ask itself what needed to be done so as to order to achieve a minimal compliance with s 62(1) and then frame orders accordingly. In my view this means that there was no proper statutory foundation for the orders. [113] Furthermore, the orders are in the nature of mandatory injunctions. Such orders can be enforced (indirectly, under NCAT: Civil and Administrative Tribunal Act, s 73) by way of contempt. It is unacceptable that the recipient of the order should be in any doubt as to what is required. In my view, for the Tribunal to make an order giving rise to such a doubt is itself an error of law. [114] An adjudicator, and on appeal, the Tribunal, may have power to make an order that an owners' corporation carry out a defined repair in order to comply with its obligation under SSMA s 62. But the orders made in this case have been made in a form which takes them outside the limits of any such power. In truth, the orders are nothing more than a vague "wish list" from Ms Hegyesi. They should not have been made and must be set aside."
While we accept that the application of the principles in Glenquarry at [104], [111]-[114] means that it would be inappropriate to make orders 2 and 3 in the undated Ms Noor statement, we do not agree that it is appropriate to dismiss the appeal. In the exchange took place between Senior Member Paull, Mr Ton and Mr Noor 16 September 2022 Mr Ton conceded that a work order could be made. In these circumstances, it is appropriate to remit the issue of whether the owner is entitled to orders 2 and 3 in the undated Ms Noor statement to the Consumer and Commercial Division of the Tribunal as originally constituted for reconsideration on the basis of the agreement of the parties or in the absence of agreement on the basis of the evidence of the parties and such further evidence as the Tribunal may allow.

[23]

Consideration

Section 106 of the SSM Act deals with the duty of an owners corporation to maintain and repair property, and relevantly provides: 106 Duty of owners corporation to maintain and repair property (1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation. … (5) An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation. (6) An owner may not bring an action under this section for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss. …
In Tezel, the New South Wales Court of Appeal decided an appeal which concerned the question of whether a respondent's claim against the applicant owners corporation for loss of rent was out of time by reason of s 106(6) of the SSM Act. Mitchelmore JA at [41]-[42], [45]-[47], [49] held (with Gleeson JA at [1] and Kirk JA at [58] agreeing): "[41] The time limit in s 106(6) of the SSM Act commences to run from the point that the owner "first becomes aware of the loss". Accepting, as both parties did, that s 106(6) is directed to actions brought under s 106(5), "the loss" to which s 106(6) refers is the loss suffered as a result of the owners corporation's contravention of s 106(1). Consistently with the approach to statutory construction that strives to give every word of legislative provisions work to do (see, for example, Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [39], [41]-[42], [76] and [79]) the question posed by s 106(6) is, put simply: when did the lot owner first become aware of the loss that s 106(5) entitles a lot owner to recover (subject to establishing the elements of the cause of action) - here, loss of rent? [42] The respondent's construction of "the loss" in s 106(6) was "the reasonably foreseeable loss that the owner is seeking to recover, that is, the loss referred to in s 106(5)" (emphasis added). As is apparent from the emphasised words, that construction conflates the loss that is the subject of the particular proceedings and the loss for which s 106(5) makes provision, and is circular in its effect. The requirement in s 106(5) that the loss be reasonably foreseeable is a form of remoteness limitation on what damages may be recovered. It is not part of the limitation period requirement in s 106(6). That provision refers to when the owner first became aware of the loss, not to when the owner first became aware the loss was reasonably foreseeable. The respondent's construction is thus not supported by the text." "[45] Both parties accepted that a breach of s 106(1) may be of a continuing nature. However, as Senior Counsel for the applicant submitted, it does not follow from acceptance of that possibility (which was the case here) that "the loss" occurs on a rolling basis so as to reset the point of first awareness. … [46] Noting the necessity to be careful about reasoning by analogy from differently formulated limitation provisions, the point that Senior Counsel for the applicant sought to make for the purposes of s 106(6) was that where the loss remained the same (here, lost rent), knowledge of that loss did not reset for each day that the breach continued. … [47] The differences of language on which the respondent relied, between the use of "loss" in s 106(5) and (6) and other provisions of the SSM Act which refer to actions for "damage to … property" (s 106(4) and s 132(1)) or "damage to a lot or any of its contents" (s 122(6)) and the approach in other limitation provisions (such as s 14(1)(b) of the Limitation Act), do not call for a contrary conclusion. Differences in language may have significance and should be given effect as a general proposition, but the differences do not assist the construction of s 106(6) for which the respondent contends. I accept the applicant's submissions in that regard." "[49] The construction of s 106(6) that I have adopted is consistent with its terms, read in the context of s 106 and in the broader context of the legislation of which it forms part. Applying that construction to the present case, the loss that the respondent suffered as a result of the owners corporation's breach of s 106(1) was lost rent. The time at which she first became aware of that loss was in 2016. The two-year period started to run from that point."
It is implicit in the Tribunal Decision that the Tribunal on the basis of the evidence of the Local Court proceedings found that the owner first became aware of the loss of rent on 19 June 2021. The two-year period specified in s 106(6) of the SSM Act started to run from that point. As the owner commenced the proceedings on 14 September 2021, her claim for damages for loss of rent was out of time.
Having regard to Collins at [76], we are not satisfied that the owner may have suffered a substantial miscarriage of justice on any ground in cl 12(1) of Sch 4 of the NCAT Act.

[29]

Orders

We make the following orders: 1. the application for miscellaneous matters of the appellant filed on 6 July 2023 so far as it seeks to add ground of appeal 13 is dismissed; 2. the application for miscellaneous matters of the appellant filed on 19 July 2023 is dismissed; 3. to the extent necessary leave to appeal is refused; 4. the appeal is otherwise allowed; 5. the order dismissing application SC 21/38944 made on 22 May 2023 is set aside and in its place the following order is made: "Proceedings SC 21/38944 are dismissed so far as the claim of the applicant for damages for loss of rent." 1. the issue of whether the appellant is entitled to orders 2 and 3 in her undated statement filed on or about 3 December 2021 in proceedings SC 21/38944 is remitted to the Consumer and Commercial Division of the Tribunal as originally constituted for reconsideration on the basis of the agreement of the parties or in the absence of agreement on the basis of the evidence of the parties and such further evidence as the Tribunal may allow; 2. the issue of whether the appellant is entitled to an order for damages except in respect of her claim for loss of rent is remitted to the Consumer and Commercial Division of the Tribunal as originally constituted for reconsideration on the basis of the evidence of the parties; 3. there is no order as to the costs of the appeal; 4. if any party wishes to make an application to vary order (6) above, the applicant (the costs applicant) must file and serve a costs application, including submissions limited to three pages and any evidence in support, on or before 14 days from the date of this decision; 5. the respondent to the costs application is to file and serve any submissions limited to three pages and any evidence in reply on or before 28 days from the date of this decision; 6. the costs applicant is to file any submissions limited to two pages in reply on or before 35 days from the date of this decision; 7. the parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the application being determined on the papers.

Parties

Applicant/Plaintiff:

Noor

Respondent/Defendant:

The Owners - Strata Plan No 72939

Legislation Cited (3)

Strata Schemes Management Act 2015(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Civil and Administrative Tribunal Rules 2014(NSW)

Cases Cited (19)

v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Jain v Dr N Kalokerinos Pty Ltd [2023] NSWCATAP 141 The Owners - Strata Plan No 74232 v Tezel [2023] NSWCA 35 Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: None cited Category: Principal judgment Parties: Haidi Noor (Appellant) The Owners - Strata Plan No 72939 (Respondent) Representation: A Noor (Appellant) Grace Lawyers (Respondent) File Number(s): 2023/00179215 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 22 May 2023 Before: C Paull, Senior Member File Number(s): SC 21/38944

The Tribunal Decision

In the Tribunal Decision, the Tribunal relevantly provided the following reasons: 1. noted the position of the owner as a lot owner and the owners corporation in relation to the strata scheme; 2. noted that there was no issue that flooding, for which the owners corporation conceded liability at the commencement of the hearing, had occurred and affected one of the bedrooms of the owner's lot; 3. noted that the claims for damages of the owner and that the hearing was limited to damages; 4. noted that the owner resides in the lot with her husband Mr Noor and child, and that, unless stated otherwise, the term "the applicant" is used interchangeably to refer to either the owner and Mr Noor; 5. set out the owner's case that in 2014 she and Mr Noor entered into an oral agreement whereby Mr Noor was to have exclusive use of a bedroom as an office and shared use of the bathroom and kitchen when working in the bedroom. In return Mr Noor would pay the outgoings of approximately $1000 per month, being all strata levies, council rates and water rates (the oral rental agreement). It was contemplated that Mr Noor would claim tax concessions for the outgoings he paid as "rent" in running his business, and the owner for tax purposes would claim a percentage of the outgoings in respect of her "rental" of the bedroom to Mr Noor; 6. found that there was insufficient evidence in support of the oral agreement: "There are no tax returns before the Tribunal for the periods the subject of the rental claim made in these proceedings ; no evidence of what tax returns, if any were lodged for this period; and no substantiated explanation as to the applicant's tax position and stance for this period. There is no evidence from the applicant's accountant. … Apparently the applicant's accountant was unwell. How serious this illness was and how matters have progressed for the tax period relating to the subject rent claim, have not been clearly explained or substantiated.…" 1. found that these matters reduced the credibility of the owner and lent some weight to the owners corporation's submission that the payment of the outgoings by Mr Noor was a "sham" from which the owner gained financial advantage in earlier tax years; 2. found that there are discrepancies between the redacted CBA bank statements (which were exhibit A2) and the unredacted CBA bank statements (which were exhibit A1). One example was the entry on 14 February 2015 recorded an "office rentals in the unredacted CBA bank statements and "expense" in the redacted CBA bank statements. There was an absence of any pattern of regularity to point to the oral rental agreement for Mr Noor to pay around $1000 per month rent to the owner; 3. found that these matters gave weight to the owners corporation's submission that the payments of the outgoings recorded in the CBA bank statements amount to no more than a domestic arrangement for the paying of day to day housekeeping expenses; 4. found that that there was no oral rental agreement and as the owner's claim rests on the existence of such an agreement, the claim must be dismissed; 5. allowed the owners corporation to re-open its case to tender a transcript of Local Court proceedings between the parties in which a claim for rental loss before the period claimed in these proceedings was dismissed: "In short, the Local Court dismissed the proceedings for rental loss and the applicant then brought the current proceedings, before the Tribunal, where the claim for rental loss was crystalised for a period post the one considered by the Local Court (as well as for other specified damages.) 1. having regard to the decision of the New South Wales Court of Appeal in The Owners - Strata Plan No 74232 v Tezel [2023] NSWCA 35 (Tezel), found that the owner's case was out of time and the owner was required to have lodged a claim for all her loss including future loss in the one set of proceedings; 2. even if wrong about the effect of Tezel, the applicant's claim was dismissed for the other reasons given.

The scope and nature of internal appeals

Part 6 Division 2 (ss 80-81) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) contains provisions dealing with internal appeals. Section 80 deals with the making of internal appeals, and provides: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may - (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
Section 81 deals with the determination of internal appeals, and provides: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(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 - (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds.

(2020) 103 NSWLR 479

(2010) 241 CLR 252

Cited By (2)

Noor v The Owners - Strata Plan No 72939

Noor v The Owners-Strata Plan No 72939

In Collins, the Appeal Panel at [84] summarised the general principles which govern the granting of leave to appeal: "[84] The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there."