Pellow v The Owners-Strata Plan No 4152 [2025] NSWCATCD 206;

Lot veranda. However, there has been no work done by the respondent in relation to the building of a ramp. 22. There was no evidence given before me about what had been done in respect of the applicant's complaint, if anything, after July 2024. 23. On 5 November 2024 the applicant commenced proceedings in the Tribunal. 24. On 17 June 2025 the applicant filed written "opening" submissions in the Tribunal. The following orders were applied for:

Orders Sought

The Applicant seeks the following orders:

1. The Respondent issue a work order for the installation of a pedestrian access ramp and handrail at the scheme's common property front entranceway.

2. The Applicant has liberty to relist this matter if the works are not completed within 3 months of these orders.

3. Any other orders the Tribunal considers appropriate

4. Each party pay their own costs

1. On 30 June 2025 the matter was heard by the Tribunal. Both parties were legally represented. The decision was reserved with the usual sequence for the parties to file and serve closing submissions in support of their case and to respond to the case of the other party, which has been done.

1. The applicant submitted that the Tribunal has power to determine this matter by virtue of ss 28 and 29 of the CAT Act.
2. Section 28 relevantly provides as follows:

28 Jurisdiction of Tribunal generally

(1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.

(2) In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction -

(a) the general jurisdiction of the Tribunal,

(b) the administrative review jurisdiction of the Tribunal,

(c) the appeal jurisdiction of the Tribunal (comprising its external and internal appeal jurisdiction),

(d) the enforcement jurisdiction of the Tribunal.

(3) Subject to this Act and enabling legislation, the Tribunal has jurisdiction in respect of matters arising before or after the establishment of the Tribunal.

29 General jurisdiction

(1) The Tribunal has general jurisdiction over a matter if -

(a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and

(b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.

Note.

The general jurisdiction of the Tribunal includes (but is not limited to) functions conferred on the Tribunal by enabling legislation to review or otherwise re-examine decisions of persons or bodies other than in connection with the exercise of the Tribunal's administrative review jurisdiction.

(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction -

(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,

(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.

(3) A general decision of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction.

(4) A general application is an application made to the Tribunal for a general decision.

(5) Nothing in this section permits general jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.

1. On 29 July 2025 the applicant submitted in her submissions in reply on jurisdiction that the Tribunal has jurisdiction to determine this application because:

1. The Applicant is an interest (sic) person (lot owner) as contemplated in s226 SSMA.

2. There is a complaint or dispute about a matter that falls under s232(1).

3. More specifically, s232(1)(a) a dispute relating to the operation, administration or management of a strata scheme under the SSMA being a dispute relating to the Respondent's decision not to renew or replace fittings or fixtures on common property (s106(2) so as to provide safe egress for a lot owner with reduced mobility, and/or

4. s232(1)(f) provides the Tribunal with power to make orders about a dispute relating to the exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act.

This dispute relates to the Respondent's exercise of its management and administration function of a strata scheme, and the ADA imposes on the Respondent an obligation to exercise that function in a manner that does not directly or indirectly discriminate against a person with a disability, subject to a defence of unjustifiable hardship.

5. The Respondent has not opposed its characterisation as a service provider or raised a defence of unjustifiable hardship.

6. The SSMA does not limit the time an Applicant may seek to enforce compliance with that Act, except where a loss is claimed under s106(5).

7. The Applicant's complaint is not excluded under s232(7)). The power to make orders under s232 (7) is excluded if:

a complaint or dispute relating to the exercise of, or failure to exercise, a function conferred or imposed by or under any other Act

if the other Act confers jurisdiction on another court or tribunal with respect to the subject-matter of the complaint or dispute, and

the Tribunal has no jurisdiction under a law (other than the SSMA) with respect to that subject-matter.

8. The dispute before the Tribunal relates exclusively to the exercise of management functions conferred on the Owners Corporation under the SSMA, functions exercised for the benefit of the owners of lots in the strata scheme. That the ADA requires an Owners Corporation to undertake those functions free from discrimination does not exclude this complaint. The ADA does not confer on the Tribunal the power to make orders relating to the operation, administration or management of a strata scheme.

9. It is not a complaint under the ADA in which the Applicant seeks compensation under s108 ADA. [see [3] -[6] Applicant Submissions in Reply 30 June 2025].

10. The Respondent's contention at [12] RS is that the Applicant can only invoke the prohibition on discriminatory conduct in the provision of goods and service as provided in the ADA by first making a complaint to the NSW Antidiscrimination Board, ignores the intention of parliament in enacting the protections in the ADA.

11. The ADA is a law to protect the right to equal participation in society in areas where the private and public domains meet. It is not a protection that only arises if those rights are first breached, and the Applicant agitates a complaint for compensation to the NSW Antidiscrimination Board.

12. The ADB has no jurisdiction to make the orders sought by the Applicant under the SSMA.

13. The Respondent exercised its' statutory obligation to manage and administer the strata scheme, in relation to the Applicant's request for a ramp, based on the discriminative beliefs held by the strata committee.

1. In short, the applicant submitted that it seeks orders under the SSM Act and not damages for discriminatory conduct under the ADA.
2. The applicant's case was put under three separate headings.

(1) Section 106(2) of the SSM Act

(2) Anti-discrimination Laws

(3) Section 232(1)(f) SSMA and ADA

1. I will briefly summarise the applicant's submissions in respect of each heading.

1. The applicant submitted that the respondent has a duty under s 106(2) to renew or replace fittings and fixtures on common property to meet the ordinary needs of an older owner/occupier with a disability affecting mobility.
2. The applicant submitted that strata schemes are home to 1 in 5 people in NSW. The respondent's decisions must be seen in that context, being a decision affecting an owner's ability to live at home safely. The respondent's decisions not to provide safe egress was based on incorrect belief and considerations. That is, a) the applicant is ineligible to apply for National Disability Insurance Scheme (NDIS), b) there was no evidence given to the respondent that the applicant needed a ramp. She was able for more than 20 years to get to and from her apartment without assistance and a ramp, and c) there is sufficient information provided to the contrary that the applicant does not have disability that impairs her mobility, including a letter by the applicant's general practitioner given to the respondent, dated 14 February 2024 (Aff of D Pellow at [44].
3. The applicant submitted that in the absence of unjustifiable hardship, the respondent must exercise its duty under s 106 in a manner consistent with the ADA and renew and replace fittings and fixtures to facilitate equal participation in society for all owners, not only able-bodied owners. The applicant stated that reference is made to the following decisions:

-Glenquarry Park Investments Pty Ltd v Hegyesi NSWSC 425 at [60-72]

-Ridis v Strata Plan 10308 [2005] NSWCA 24 at [55 -57] (Ridis)

Lyon v The Owners Strata Plan No 11045 [2023] NSWCATCD 31 at [36] (Lyon)

1. The applicant submitted that the decision in Thoo v The Owners Strata Plan No. 50276 [2011] NSWSC 657 can be distinguished on the facts because in Thoo the decision turned on the nature of the proposed exhaust ventilation and not ordinary infrastructure for a person ageing at home.
2. The applicant submitted that the decision in Ridis v Strata Plan 10308 [2005] NSWCA 246 can be distinguished on the facts. In Ridis the decision turned on the pre-emptive replacement of standard glass which was not identified as defective or broken or presenting a real risk. In this matter there is a real risk of the applicant falling on the front steps without there being a rail or a ramp. That is, the risk of the applicant falling in the absence of a rail and ramp at the front door is real. The applicant has had a fall recently and had to be admitted to St George Hospital with a fractured wrist.
3. The applicant cited the following passage from Ridis:

To put the issue another way: did the obligations of the respondent under s 62(2), when read in conjunction with s 62(3), on their true construction inform, for the purpose of the Shirt calculus, the standard of the response of a reasonable owners corporation in the position of the respondent to any foreseeable risk of injury related to the glass panels of the front doors of the building. In my opinion, the answer to that question is in the affirmative.

1. The applicant submitted that her claim is based on the ordinary and foreseeable needs based on her changing physical requirements. She bought the apartment in 1997 in anticipation of her needs later in life. She moved into her Lot in 2022 after her spinal injury, that should not make her request for a rail and a ramp any less foreseeable. The applicant stated that the obligation of the respondent under s 62 when read in conjunction with s 62(3) (SSM Act 1996) the standard response of a reasonable owners corporation in the position of the respondent to any foreseeable risk of injury related to the glass panels (in Ridis) of the front doors of the building.
2. The applicant submitted that the respondent is the appropriate party to progress the work at the scheme's entrance way to provide safe egress for older people with physical disability. The work to be done at the entrance cannot be subject to a common property lot by-law registered on the applicant's Lot, given the location of the scheme's entrance way.

1. The applicant submitted that the respondent must exercise the functions given to it under the SSM Act in a manner consistent with the NSW Antidiscrimination Act 1977 (ADA), and particularly s 49M. Section 49M is as follows:

Provision of goods and services

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability -

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

1. The applicant's claim of indirect discrimination is that a substantially higher proportion of people without the applicant's disability can comply with the respondent's requirement to enter and exit the common property entrance in the absence of railing or a ramp, as mandated in s 49B(1)(b) of the ADA.
2. The applicant submitted that it does not have to make a complaint to the NSW Antidiscrimination Board to enliven the protections in the ADA against discriminatory conduct. The applicant referred in support of her case to Araya v Owners Corporation SP 65717 [2021] NSWCATAD 5 and Hulena v Owner's Corporation Strata Plan 13672 [2010] NSWADTAP 27.
3. The applicant did not elaborate, other than referring to the above decisions, how they may assist her case. For completeness, I will briefly outline what the decisions were about without making any other reference in this part of the reasons, how they may or may not assist the applicant's case.
4. In Araya the issue was whether the Owners Corporation discriminated against Mr and Mrs Araya on the ground of disability, by not permitting them to use the disabled visitors' parking space and by enforcing a by-law which prohibited them from parking in the disabled visitors' parking space. Additionally, the question was, did the owners corporation indirectly discriminate against the applicants by requiring them to comply with the requirement not to park in visitor car spaces, being a requirement with which an able-bodied resident could comply with more easily.
5. In Araya, Mr and Mrs Araya complained to the President ADNSW that Ms Araya had been discriminated against by the Owners Corporation of Strata Plan 65717 in the provision of goods and services, on the grounds of her mobility disability. That is, the applicants claimed that the Owners Corporation directly discriminated against them by pursuing them for parking in the disabled visitors' parking space, whilst not taking comparable action in respect of other residents who parked in visitors' parking spaces.
6. In August 2019 the Owners Corporation's Solicitors provided a response regarding Mr and Mrs Araya's complaint to the President of the Anti-Discrimination Board.
7. The applicant's complaint was referred by the President of ADNSW to NCAT, Administrative and Equal Opportunity Division. The Owners Corporation applied in the Tribunal to dismiss the complaint under section 102 of the ADA, essentially on the basis that the Owners Corporation does not provide services. The Tribunal decided in the preliminary decision that the complaint on behalf of Mr and Mrs Araya on the alleged basis that the Owners Corporation does not provide services within the meaning of the ADA should be dismissed. The Owners Corporation's application was also dismissed in the preliminary proceedings on the basis that Mr and Mrs Araya's complaint was lacking in substance or that it did not disclose a contravention of the ADA.
8. The substantive matter was then heard by the Tribunal, Administrative and Equal Opportunity Division.
9. The Tribunal briefly stated the facts as follows:

(a) The development consent required the building to have 53 car spaces.

(b) The applicants were allocated a car space under the building as owners of their lot. There was a wire cage around it and a garage door which could not be remotely operated.

(c) Mrs Araya could not park in her car space due to the limited movement she had in her neck and back.

(d) The disabled parking space in the carpark was used by the building manager for the storage of the skip bins.

(e) In October 2017, the applicants raised, with the Owners Corporation, the need to have disabled parking spaces in the carpark. Following a vote at a meeting, two disabled visitor parking spaces were created in the carpark.

(f) Mrs Araya regularly parked in one of the disabled visitor car parking spaces as they were easier for her to access.

(g) Special Parking By-Law 15 provided that an owner of a lot must "not allow any occupiers of the owners lot...to park or stand any vehicle on the common property except with the prior approval of the owners corporation".

(h) In July 2018 an AGM was held. The Owners Corporation had to consider whether to approve Mr and Mrs Araya's request to be permitted to park in the disabled visitor car parking space. It was resolved at the meeting to reject Mrs Araya's request to park in the disabled visitor's car space.

(i) In August 2018, Mr and Mrs Araya applied to have the parking issue mediated. The Owners Corporation declined to engage in mediation with them.

1. In the substantive proceedings, the Tribunal agreed with the Senior Member's conclusion in the summary dismissal proceedings that the Owners Corporation does provide services and with her reasoning for arriving at that conclusion. The Tribunal found that the terms on which the Owners Corporation provided Mr and Mrs Araya with the service of managing the use of the common property (within ADA, s 49M(1)(b)) were less favourable than the terms on which it provided those services to other lot owners without a disability. It thereby treated them less favourably than it treated other persons without the disability, or who did not have a relative with the disability, in circumstances which were not materially different.
2. The Tribunal stated that Mr and Mrs Araya claimed that the Owners Corporation discriminated against them directly and indirectly on the ground of Mrs Araya's disability, in the terms on which they provided services to them.
3. The Tribunal found that in order to establish that the Owners Corporation discriminated against Mr and Mrs Araya directly on the ground of disability they had to establish that:

(1) Mrs Araya has a disability;

(2) the Owners Corporation provides services;

(3) the Owners Corporation discriminated against Mr and/or Mrs Araya in the terms on which it provided services to them, and treated Mrs Araya less favourably than it would have treated a person without Mrs Araya's disability, and Mr Araya less favourably than it would have treated the husband of a person without Mrs Araya's disability, in the same or similar circumstances;

(4) the less favourable treatment was on the ground of Mrs Araya's disability.

1. The Tribunal stated that to establish that the Owners Corporation indirectly discriminated against them on the ground of disability, Mr and Mrs Araya have to establish that:

(1) Mrs Araya has a disability;

(2) the Owners Corporation provides services;

(3) the Owners Corporation provided services on particular terms to Mr and Mrs Araya;

(4) the Owners Corporation required Mr and Mrs Araya to comply with a requirement or condition;

(5) a substantially higher proportion of persons who do not have Mrs Araya's disability, or who do not have a relative or associate who has Mrs Araya's disability, comply or are able to comply with that requirement or condition;

(6) the requirement or condition was not reasonable having regard to the circumstances of the case; and

(7) Mr and Mrs Araya did not or were not able to comply with the requirement or condition.

(a) Mrs Araya had a disability within the ADA.

(b) The Owners Corporation provided services to Mr and Mrs Araya because the Owners Corporation manages and controls the use of the common property of the strata scheme pursuant to s 9(2)(a) of the Strata Schemes Management Act and it also provides a service to lot owners by managing the finances of the strata scheme, pursuant to s 9(3)(a) of the Strata Schemes Management Act. The Tribunal concluded that therefore their finding is that the Owners Corporation is "a person who provides, for payment or not, goods or services" within s 49M(1) of the ADA.

(c) The Tribunal found that the terms on which the Owners Corporation provided Mr and Mrs Araya with the service of managing the use of the common property (within ADA, s 49M(1)(b)) were less favourable than the terms on which it provided those services to other lot owners without a disability. It thereby treated them less favourably than it treated other persons without the disability, or who did not have a relative with the disability, in circumstances which were not materially different.

(d) The Tribunal asked itself whether the less favourable treatment was "on the ground of" Mrs Araya' disability. The Tribunal stated that the causation element requires the Tribunal to ask whether Mrs Araya's disability was one of the "real," "genuine" or "true" reasons for providing the service on less favourable terms:

(e) That is, the Owners Corporation did not take action against another Lot owner who used a disabled parking space for many years to store skip bins there. The Tribunal noted that the Owners Corporation refused to mediate with Mr and Mrs Araya. The Tribunal found that the Owners Corporation decided to mediate with the owner of another lot, instead of bringing proceedings in the Tribunal against that owner. The Tribunal observed that there was no evidence that the other two lot owners had a disability.

(f) The Tribunal had to consider whether the less favourable treatment was "on the ground of" Mrs Araya's disability? The Tribunal found that there is no direct evidence that Mrs Araya's disability was a factor in the Owners Corporations treatment of Mr and Mrs Araya, and that was denied by the Owners Corporation.

(g) The Owners Corporation stated that it refused to mediate with Mr and Mrs Araya because the strata committee could not overturn the Owners Corporation's decision made at the meeting in July 2018 not to allow Mr and Mrs Araya to park in the disabled visitors' parking space. The Owners Corporation argued that it would have been in breach of the Development Consent if it handed over exclusive use of a disabled car space to the Complainants. In addition, the owners corporation could not simply decide that it would waive the requirements to comply with its by-laws to suit a single lot owner, in circumstances where the by-laws been made for the benefit of the Owners Corporation as a whole.

(h) That is, the Owners Corporation denied discriminating against Mrs Araya on the ground of her disability. The owners Corporation stated that it would agree to the Complainants installing an automatic garage door opener on the garage of their lot alleviating the need for the Complainants to getting and out of their motor vehicle when parking in their allocated parking space. The Tribunal found that there was no direct evidence that Mrs Araya's disability was a factor in the treatment of Mr and Mrs Araya. The Tribunal was informed that the Owners Corporation would have taken same action to enforce the by-laws irrespective of Mrs Araya's disability.

(i) The Tribunal proceeded to examine whether Mr and Mrs Araya could seek to prove that disability was a factor in his or her treatment, by way of inference from other facts: Hamed v Director General, Department of Education [2007] NSWADT 43 at [26]; Khanna v Director General, NSW Department of Education & Communities [2012] NSWADT 92 at [17].

(j) The Tribunal referred to the decision in Dutt v Central Coast Area Health Service [2002] NSWADT 133. In Dutt the Tribunal identified the following principles as being relevant to the drawing of inferences:

"...(ii) an inference must be reasonably drawn on the basis of the primary facts;

(iii) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference;

(iv) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof;

(v) it is not enough that the inference is a mere possibility: it must be one of 'probable connection';

(vi) the inference must be a logical one, and not supposition;

(vii) an inference cannot be made where more probable and innocent explanations are available on the evidence."

(k) The Tribunal stated that they did not consider that this inference can properly be drawn. The Tribunal accepted the evidence of the Owners Corporation as to the reasons why it acted as it did. The Owners Corporation did not act in the way it did because of Mrs Araya's disability. It could not have been inferred from the failure of the Owners Corporation's to take any action in the case of the building manager for storing bins in the visitor parking space, meant that action was taken against Mr and Mrs Araya's on the ground of Mrs Araya's disability. The storing of the bins in the visitor parking space could be seen as being in the common interest of residents or, possibly the building manager considered that the place where the skip bins were stored was not a visitor parking space.

(l) Mrs Araya's complaint was dismissed on the basis of indirect discrimination because the Tribunal was unable to find due to lack of evidence, a) what is the proportion of residents with two or more cars and the ability of residents, in practical terms, to find alternative parking in the street, and b) the Tribunal had no evidence before it about the ability of other residents to comply with the requirements not to park in visitor car parking spaces.

1. In Hulena the applicant bought an apartment in 1993 in the Sydney suburb of Potts Point. Ms Hulena had multiple sclerosis. She was unable to access her apartment through the three available pedestrian routes because of the multiple sclerosis. She complained that the Owners Corporation has indirectly discriminated against her on the ground of her disability on the terms on which it provided her with a service, s 49M and 49B(1)(b) of the ADA. The Tribunal decided in the primary proceedings that the Owners Corporation had not breached the ADA because it had not imposed the pedestrian access requirement on Ms Hulena. The pedestrian access was a feature or incident of the design of a 40-year-old building.
2. Ms Hulena appealed against the Tribunal decision on the question of law. She argued that the Tribunal made an error of law by considering itself bound by the High Court's decision in New South Wales v Amery [2006] HCA 14. In Amery thirteen female casual teachers complained about different pay scales of the casual and permanent teachers in NSW. That is, the casual teachers were paid lower rates than permanent teachers. The casual teachers complained that they were indirectly discriminated against because they to obtain a permanent teaching position in order to receive the higher rate of pay given to the permanent teachers.
3. In Amery the legislative provisions were about indirect sex discrimination in Part 3 of the ADA. Those provisions were relevantly in identical terms to the provisions in Part 4A which were under consideration in the Hulena matter.
4. The Appeal Pannel concluded that the Tribunal was bound by the High Court's ratio in respect of the principle referred to as the "terms and conditions". As there was no other ratio in the High Courts' decision, the Tribunal was not bound by any other principle expressed by the majority in the High Court.
5. The Appeal Panel stated that it had to ask itself as the High Court did in Amery, applying ss 24(1)(b) and 25, whether the perpetrator engaged in a proscribed form of discrimination, not "what was the requirement or condition in this case." The majority concluded that it could not be said to be a requirement or condition in this case. The structure of the employment was imposed by the Teaching Services Act. The pay scales set by the award and the practice, adopted by the Department, of no extending to its supply casual teaching staff over-award payments were an incident of the management of that structure.
6. The Appeal Panel stated that, by analogy, in Ms Hulena's case, the pedestrian access requirement was not imposed by a decision or practice of the body corporate which owns the common property of the apartment complex. The pedestrian access is a feature of the design of a building which was erected prior to the adoption of minimum design practices to enable access for people with disabilities, and which are contained in the Australian Standards which do not apply retrospectively.
7. The Appeal Panel found that the interpretation given to Amery by the Tribunal meant that any long-standing discriminatory policy or requirement would not come within the ambit of the ADA if it was in existence prior to the commencement of that Act. The Appeal Panel found that there is nothing in the ADA that excludes an ongoing arrangement or policy simply because that arrangement or policy was lawful at the time it was created or adopted by the alleged perpetrator. If that were the case, the practical result would be excluding from the operation of the ADA an arrangement or policy simply because it was in existence prior to the commencement of that Act, would not be consistent with its objects.
8. Ms Hulena's claim on the ground of indirect discrimination was dismissed because she did not have to comply with any requirement or condition.
9. The Appeal Panel found Ms Hulena's complaint substantiated and remitted the matter back to the Tribunal to determine whether any order should be made for the respondent to pay the complainant damages or any other remedy as provided in s 108(2) of the ADA.

1. Section 232 of the SSM Act relevantly provides as follows:

232 Orders to settle disputes or rectify complaints

(1) Orders relating to complaints and disputes The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following -

...(f) an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act...

1. The applicant submitted that the explanatory notes to the Strata Schemes Management Act 2015 state that the bill amends the 1996 Act with changes and additions...and at Part 12(d) the notes relevantly say:

jurisdiction is conferred on the tribunal to deal with complaints or disputes about an agreement under the proposed Act, agreements relating to strata schemes between the owners corporation and owners, mortgagees and covenant chargees and the failure of an owners corporation to exercise a function under another Act (proposed section 232)".

1. The applicant submitted that the inclusion of s 232(1)(f) in the SSM Act must be read as the expression of the Parliament's intention to allow for something not previously provided for in the 1996 Act.
2. The applicant stated in support of her above contention the following:

The NSW Interpretation Act 1987 at s48(1) says: If an Act or instrument confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires.

1. The applicant stated that there was little case law on s 232(1)(f). The applicant contends that s 49M of the ADA prohibits the Owners Corporation from exercising or failing to exercise its function in relation to the common property in manner that indirectly discriminates against the applicant.
2. The applicant submitted that the ADA imposes an obligation on the Owners Corporation to exercise the functions under the SSM Act in a manner consistent with the ADA, as the occasion requires. The applicant's claim is that there was an indirect discrimination against her by the Owners Corporation.
3. The applicant submitted that the terminology adopted in s 232 should be understood to cover claims and disputes with respect to any of the matters identified in subsection (1) which relevantly is as follows:

(1) Orders relating to complaints and disputes The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following -

(a) the operation, administration or management of a strata scheme under this Act,

(b) an agreement authorised or required to be entered into under this Act,

(c) an agreement appointing a strata managing agent or a building manager,

(d) an agreement between the owners corporation and an owner, mortgagee or covenant chargee of a lot in a strata scheme that relates to the scheme or a matter arising under the scheme,

(e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,

(f) an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act.

1. The matters stated in subsection (1) are themselves intended to cover the full range of an owners corporation's functions in operating, administering and managing the strata scheme, and exercising or failing to exercise any function under the Act or the by-laws of the strata scheme.
2. The applicant submitted that under s 232 the powers of the Tribunal are very broad. However, these powers must be exercised in respect of the substantive legal right. The applicant cited in support of her submission the Appeal Panel decision in Quo Warranto Pty Ltd v Goodman [2022] NSWCATAP 315. The applicant cited the following passage:

While the Tribunal's power to make orders to settle disputes or complaints under s 232(1) is broad and should not be construed in a limited way, this does not mean that the power is limitless. The authorities concerning s 232(1) - including the majority decision of the Court of Appeal in Vickery - do not support a conclusion that the Tribunal can make any order it wants to settle a dispute or complaint - even in respect of a matter that falls within s 232(1)(a) to s 232(1)(f) - in the absence of a cause of action arising from a substantive legal right or obligation. In our view,.. s 232(1) empowers the Tribunal to make orders in circumstances where substantive rights and obligations exist. A cause of action that enlivens the Tribunal's power to make orders under s 232(1) may be found elsewhere in the SSMA Act, in the strata scheme's by-laws, in other statute law or in the general law.

1. The applicant submitted that s 106(2) of the SSM Act provides a substantive cause of action which provides the authority for orders under s 232 of the SSM Act.
2. The applicant submitted that in the alternative to her application for orders to be made under ss 106(2) and 232, Tribunal may make an order in her favour under s 240 of the SSM Act. Section 240 is relevantly as follows:

240 Tribunal may make order of another kind

The Tribunal may deal with an application for an order under a specified provision of this Act by making an order under a different provision of this Act if it considers it appropriate to do so.

1. The applicant cited in support of her contention, The Owners-Strata Plan No 14593 v Soares [2019] NSWCATAP 35. In Soares, the Appeal Panel stated the following:

It is not necessary for the purpose of the resolution of this particular matter that we discuss the nature and extent of the jurisdiction and powers set out in the provisions above in any detail. What is required is that there be a complaint or dispute about the operation, administration or management of a strata scheme. (See generally Rothman J in the Supreme Court of NSW in The Owners - Strata Plan No 37762 v Dinh Phuong Dung Pham and anor [2006] NSWSC1287 at [78] and following. We observe that by reason of the provisions of section 240 we are entitled, if it be necessary, to determine this aspect of the appeal proceedings by reference to the provisions of section 106 rather than section 108 of the Act. In addition, we refer in general terms to the principles established by decisions of this Tribunal, and particularly at Appeal Panel level, such as Walsh v The Owners - Strata Plan No 10349 [2017] NSWCATAD 230.

1. The respondent asserted in its Points of Defence the following:

(1) that Mrs Araya does not suffer from disability that impairs her mobility to the extent that she cannot safely gain access into and out of the common property entrances to the respondent's building or her Lot in that building.

(2) that the Tribunal has not have jurisdiction to make an order sought by the applicant under s 232 of the SSM Act. The respondent contends that the common property is properly maintained and in the state of good and serviceable repair in compliance with s 106 of the SSM Act and does not require any modification to be properly maintained and in the good repair.

(3) that the Tribunal does not have jurisdiction or power to make orders in the form sought by the applicant by reason of the decision of the Supreme Court in Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425.

(4) that the applicant did not make her application to the Tribunal within 28 days from the day on which she became entitled under the SSM Act. The respondent's contentions are as follows:

(a) the application has not been brought in time by reason of rule 23 of the Civil and Administrative Tribunal Rules 2014;

(b) the applicant requires an extension of time to bring her application under section 41 of the Civil and Administrative Tribunal Act 2013; and

(c) there is no proper basis for the Tribunal to grant the applicant such an extension of time.

1. I will briefly summarise the respondent's submissions in order of sequence put by the applicant.

1. The respondent submitted that the applicant seeks an order to compel the Owners Corporation to install a pedestrian access ramp and handrail at the front entranceway of the building. That is, the Owners Corporation has breached its duty under s 106(2) of the SSM Act to renew or replace any fixtures or fittings comprised in the common property. The respondent submitted that the applicant's claim is based on a misunderstanding of the nature and scope of that duty.
2. The respondent submitted that s 106(2) is directed to the circumstances where something in the common property is no longer operating effectively or it has fallen into disrepair, not where there is a need for common property to be upgraded to facilitate access for a disabled person.
3. The respondent cited in support of its case, The Owners-Strata Plan 50276 v Thoo [2013] NSWCA 270 where it was held that:

(a) common property must be renewed or replaced under section 106(2) only when it is no longer operating effectively or has fallen into disrepair to the point where its renewal or replacement is called for as it can no longer be kept in a state of good and serviceable repair pursuant to section 106(1); and

(b) once it emerged that the mechanical exhaust ventilation system that was considered in that case had not fallen into disrepair but was operating according to its original design capacity, there could be no breach of section 106(2) by reason of the owners corporation's refusal to replace the system.

1. The respondent cited in support of its argument, Ridis v Strata Plan 10308 [2005] NSWCA 246 and Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425. The respondent submitted that in Ridis the Court considered the obligations of the owners corporation under s 62(2) of the SSM Act 1996 (which became s 106(2) of the SSM Act 2015). The respondent submitted that s 10 6(2) imposes an obligation on the Owners Corporation to attend to common property that is no longer operating effectively or at all or has fallen into disrepair. That is, Ridis does not say that the Owners Corporation is under obligation to upgrade its common property to facilitate access for a disabled person.
2. The respondent cited in support of its the decision in Glenquarry in which Parker J held that an obligation in sub-section (2) to renew or replace common property arises only when it is "necessary" or "appropriate" to do so as part of complying with the obligation to maintain the common property in good and serviceable repair under sub-section (1).
3. The respondent concluded its submission by stating that the applicant is proposing something which goes beyond the minimum required of it to comply with its duty under s 106(2). To upgrade or enhance common property involves the exercise of the Owners Corporation's discretionary power under s 108 of the SSM Act. That is, the Tribunal has no power to compel the Owners Corporation to upgrade the common property. Under s106 of the SSM Act the Tribunal order can go no further than the minimum necessary to comply with that obligation: Glenquarry at [111].

1. The respondent submitted that s 49M of the ADA does not confer or impose any function on the Owners Corporation. Section 49M simply makes it unlawful for any person to discriminate against another person on the ground of disability.
2. Section 87 of the ADA defines a "complainant" as a person who makes a complaint. A "complaint" means a complaint made under section 87A and includes a matter referred to the Tribunal as a complaint under section 95 (2).
3. Section 89A provides that a complaint is made by lodging it with the President of The Anti-Discrimination Board.
4. The respondent's argument is that the Tribunal has no jurisdiction to make orders at the request of the applicant under the ADA. That is, the applicant commenced these proceedings in the Consumer and Commercial Division of the Tribunal. The respondent stated that a complaint about discrimination is made to ADB, and is dealt with, if referred by the President, in the Administrative and Equal Opportunity Division of the Tribunal.
5. There are two reasons given for this by the respondent. First, the applicant did not make a complaint, as she should have done, to the President of the Anti-Discrimination Board of NSW concerning her claim of discrimination under s 89A of the ADA.
6. The respondent's contention is that the Tribunal is only invested with jurisdiction to hear a complaint concerning a breach of ADA after the President refers a "complaint" to the Tribunal under ss 93A to 93C of the ADA. Second, the respondent's complaint about discrimination is out of time. The conduct complained of by the respondent occurred more than 12 months before the making of the complaint, s 89B(2)(b) of the ADA.

1. The respondent submitted that even if the owners corporation has breached section 49M of the ADA, that would not confer jurisdiction on the Tribunal to make the order sought under s 232 of the SSM Act. That is, even if s 49M of the ADA did confer or impose a function on the owners corporation there is a further reason why the Tribunal does not have jurisdiction to make the order sought by the applicant under s 232(1)(f). The respondent referred to Part 9 of the ADA. In Part 9 there are set out detailed provisions that regulate and condition the Tribunal's jurisdiction to make orders on the grounds that a person has been discriminated against in contravention of s 49M. The respondent summarised the provisions in Part 9 of the ADA as follows:

(a) a person who alleges that he or she has been discriminated against may make a complaint to the President of the Anti-Discrimination Board of New South Wales (President): sections 87A - C and 89A-B of the ADA;

(b) once the President accepts a complaint about discrimination, the President must investigate the complaint and has power to dismiss a complaint or resolve a complaint by conciliation: sections 90, 91A, 92 and 92A of the ADA;

(c) in certain circumstances, the President may refer a complaint to the Tribunal either of his or her own motion or at the request of the complainant: sections 90B and 93A-C of the ADA;

(d) a complaint that is referred by the President to the Tribunal, at the request of the complainant, cannot be the subject of proceedings before the Tribunal without the leave of the Tribunal: section 96 of the ADA;

(e) the Tribunal may dismiss a complaint or find the complaint substantiated in whole or in part and, if so, make certain orders: sections 102 and 108 of the ADA;

(f) the Tribunal does not have jurisdiction to deal with a complaint about antidiscrimination unless that complaint is referred to the Tribunal by the President. That is what occurred in each of the cases on which Mrs Pellow relies: Hulena v Owner's Corporation Strata Plan 13672 [2009] NSWADT 119; [2010] NSWADTAP 27; Araya v Owners Corporation SP65717 [2020] NSWCATAD 104.

1. The respondent submitted that there is no precedent in the Tribunal in which orders have been made under s 232 of the SSM Act on the grounds that an owners corporation had discriminated against a person in contravention of the ADA.
2. The respondent stated that it would be a surprising outcome if the entire regime given in Part 9 of the ADA Act could be by-passed including the requirement for the respondent to make a complaint to the President about her allegation of discrimination for investigation by the President and subsequent referral to the Tribunal to have determination made under s 232(1)(f) about the respondent's complaint against owners corporation.
3. The respondent submitted that to make a decision under s 232(1)(f) about the complaint made by the applicant about discrimination by the respondent would be contrary to the "Anthony Hordern Principle", Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR1. In Anthony Hordern the High Court stated the following per Dixon J:

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.

1. The respondent submitted that the "Anthony Hordern principle" explains why the general order making power under s 232 of the SSM Act does not confer the Tribunal with jurisdiction to make order sought by the applicant on the basis that the owners corporation has contravened s 49M of the ADA having in mind the conditions and restrictions which attach to the Tribunal's power to make orders in cases involving discrimination under Part 9 of the ADA. That is, the orders sought by the applicant can only be made under Part 9 of the ADA.
2. The applicant cited in support of its case, Feedback Deli Pty Ltd v The Owners - Strata Plan No 36613 [2019] NSWCATCD. In Feedback Deli the dispute was whether a special By-law in a strata scheme that excludes certain persons from accessing toilets on the common property is harsh, unconscionable or oppressive in contravention of s 139 of the SSM Act, and if so, what is the appropriate remedy.
3. Under the relevant By-law the patrons of a nearby restaurant located on the ground floor of the strata building were excluded from using toilets located on the common property.
4. Feedback Deli applied to have the By-law invalidated under s 232 and/or 229, rather than pursuant to s 150 and 148 of the SSM Act.
5. In 2017 Feedback Deli attempted to invalidate Special By-law 14 (Common Property Toilets) under s 150 of the SSM Act. In 2018 the Tribunal dismissed the application. The applicant than installed a temporary toilet on the common property area that was subject of the exclusive use By-law 13 in favour of the applicant. The temporary toilet may have been installed in breach of the Development Consent.
6. The applicant argued that notwithstanding that the remedial orders sought do not directly invoke ss 148 and 150 of the SSM Act the Tribunal still has power to determine to make the make orders in its favour under s 229 that Special By-law 14 be amended, and an order under s 232 of the SSM Act.
7. The Tribunal had 3 issues before it to determine the dispute:

(1) Is Special By-law 14, harsh, unconscionable or oppressive within the

meaning of s 139 of the SSMA 2015?

(2) If the answer to question I is "Yes"; does the Tribunal have any power

to make an order other than under s 150 of the SSMA 2015 (i.e. are

the powers under s 150 of the SSMA 2015 exclusive in respect of By-laws

that are harsh, unconscionable or oppressive?), or does it have

power to make the orders sought under s 232 and/or s 241 of the

SSMA 2015;

(3) If Special By-law 14 is harsh, unconscionable or oppressive in

contravention of s 139 of the SSMA 2015 and the Tribunal has the

power to make orders under s 232 and/or s 241 of the SSMA 2015,

should it exercise its discretion to make the orders sought?

1. The issues in dispute involved statutory interpretation of the powers of the Tribunal under SSM Act. The Tribunal decided that it had no power to make the order sought under s 232 and/or 241 pf the SSM Act.
2. The Presiding Senior Member stated that that the powers of Strata Adjudicators under the SSM Act 1996, s 165 provided that if an application was made for an order under a specific provision of that Act and the Strata Adjudicator considered that an order under that provision was "inappropriate", the Strata Adjudicator may determine to deal with the application under another provision of the Act.
3. The Presiding Senior Member stated that under Part 12, Division 4 and Division 5 of the SSM Act 2015 (which involves the general powers of the Tribunal to make orders resolving disputes under the SSM Act 2015) no provision analogous to the SSM Act 1996 has been enacted. The following was cited in the Feedback Deli to summarise the principles of statutory interpretation:

The fundamental principles to be applied to the task of statutory interpretation are well established, but were summarised by Justice Michael Kirby in "Statutory Interpretation: The Meaning of Meaning" [2011] MelbULawRw 3; (2011) 35 (1) Melbourne University Law Review 113 as follows:

(a) The correct starting point for analysis is the text of the legislation, not judicial statements of the common law or even judicial elaborations of the statute;

(b) The overall objective of statutory construction is to give effect to the purpose of Parliament as expressed in the text of statutory provisions;

(c) In deriving meaning from the text to fulfil the purpose of Parliament, it is a mistake to consider statutory words in isolation. The proper approach demands the derivation of the meaning of words from the legislative context in which those words appear. Specifically, it requires the interpreter to examine at the very least the sentence, often the paragraph, and preferably the immediately surrounding provisions (if not a wider review of the entire statutory context) to identify the meaning of the words in the context in which they are used.

1. In Feedback Deli, the Presiding Senior Member stated that the powers of the Tribunal to make orders are not unlimited. The Tribunal can only make orders where empowered by the statute to do so, The Owners - Strata Plan No. 37762 v Dinh Phuong Dung Pham and Anor [2006] NSWSC 1287. For example, the Tribunal cannot make declarations, Walsh v The Owners - Strata Plan No 10349 [2017] NSWCATAP 230.
2. The Presiding Senior Member stated that Special By-law 14 was "harsh" and it contravenes s 139(1) of the SSM Act 2015. Section 139 states in its "Note" that by-law that contravenes s 139 "may be invalidated by the Tribunal by the Tribunal (see s150)". The Presiding Senior Member than stated as follows:

To interpret the operation of s 139 and s 150 of the SSMA 2015 in the manner submitted by the applicant means that s 150 is deprived of having any meaning. If it was Parliament's intention to allow any "interested person" under s 226 of the SSMA 2015 to seek orders under either s 232 or 241 of the SSMA 2015 to vary, or read down, or invalidate in part any By-law enacted after the introduction of the SSMA 2015 which was harsh, unconscionable or oppressive, then there would be no reason to have enacted s 150. Such an interpretation would strip s 150 of the SSMA 2015 of having any purpose and meaning whatsoever.

1. The respondent in these proceedings submitted that the Tribunal in Feedback Deli relied on the Anthoy Hordern principle and decided that it did not have jurisdiction to make orders under the general provision of s 232 of the SSM Act to invalidate a by-law, when that order could be made under the specific provisions of section 150 of the SSM Act.
2. The respondent stated that the "Anthony Hordern Principle" explains why the general order making power of the SSM Act does not confer the Tribunal with jurisdiction to make an order sought by the applicant on the basis that the owners corporation has contravened section 49M of the ADA having regard to the conditions and restrictions which attach to the Tribunals power to make orders in cases involving discrimination under Part 9 of the ADA. The orders sought to be made by the applicant can only be made under Part 9 of the ADA.

1. The issues raised in this matter relate to strata title premises in (address), Narwee, NSW 2209 to which the SSM Act applies. As a result, the Tribunal has jurisdiction to hear and determine this application.

1. The background in this matter may be briefly stated as follows.
2. The applicant is the registered proprietor of Lot 2 in registered Strata Plan No 4152.
3. Lot 2 is situated on the ground level. Lot 2 is one of 12 lots in Strata Plan 4152.
4. The entry to Lot 2 from the rear of the building has 5 steps. The entry to Lot 2 at the front of the building has 2 steps.
5. The applicant purchased Lot 2 in 1997. She moved into Lot 2 in 2022.
6. In 2021 the applicant had an operation to decompress the thoracic spinal cord at lumbar spine L3 to L5.
7. There is no support rail on the front steps of the building. On 6 September 2022 the applicant asked the strata manager if rails could be installed on the steps of the front entrance to make it easier for her to enter the building. The applicant thought that the strata committee approved the installation of the rails.
8. On 31 October 2022 the respondent was to arrange and take measurements for the installation of the rails at the front and rear entrances of the building.
9. On 7 November 2022 the applicant received a message that the work order has been put on hold.
10. The applicant sent an email to the strata manager. She complained about the lengthy delays to resolve her request for the rails.
11. On 13 November 2023 the applicant wrote to the strata manager and enquired if a safety ramp was possible at the back entrance. The strata manager advised that their Strata Management Agreement has been terminated.
12. On 14 November 2023 the applicant received a response from Mr R Denholm, a strata committee member. He advised that the strata committee would attend to her request.
13. On 21 November 2022 the applicant followed up on her enquiry.
14. On 12 December 2022 the respondent held an AGM. At the meeting an appointment was made of a new strata manager who was to commence its appointment on 31 January 2023.
15. In February 2023 the applicant was told that, a) a ramp could be installed near Lot 2. The ramp would be for applicant's use only and had to be paid for by the applicant. The applicant would have to submit a diagram of the ramp and a draft exclusive use by-law which were to be put to the General Meeting of the owners to consider/approve the works and the by-law, and b) a ramp which was placed elsewhere on the common property for use by all residents. The cost of the ramp would be covered by the respondent. The respondent noted that it was not obliged to install the ramp.
16. On 22 February 2023 the respondent held an AGM. The applicant was told that the respondent cannot to anything until she obtains an OT assessment.
17. In May 2023 an Occupational Therapist conducted home assessment of her Unit. She provided a Report to the respondent and noted that the applicant had extreme difficulty to negotiate the steps throughout the unit complex and is mostly house bound as a result. The OT opined, a) ramping at the front access is not an option, b) due to the issues at the back access, ramp is not an option, c) balcony access was not recommended because of the significant cost to the applicant "and potentially Strata", d) a platform lift was recommended at the rear of the building to enable the applicant the most direct and safest option of accessing her home and community. The platform lift can be utilized by the other residents who may be ageing, need a stroller or have a pram.
18. The applicant obtained a quote to install a lift in the sum of $29,000.00.
19. The OT therapist noted the applicant will be able to access a Government Subsidy for the supply and installation of the lift. However, the applicant would have to contribute towards the supply and installation costs.
20. On 31 October 2023 the respondent held an EGM. A motion was put for the installation of the lift. The installation of the lift was costed at $73,546.38. The applicant was unable to vote at the meeting due to lack of access and a computer.
21. On 2 November 2023 the applicant was informed that her motion was defeated at the EGM.
22. On 30 November 2023 the respondent appointed a new strata manager. The applicant observed that the identity of strata agents appointed by the respondent, changed several times.
23. On 11 January 2024 the applicant was told that she needs to prove her disability, rather than telling the body corporate she has one. If she was able to prove her disability, the Strata Manager advised that they then would consider her needs and their legal obligations.
24. On 14 February 2024 the applicant provided to the respondent a report from Dr Pisarska.
25. On 15 February 2024 the respondent held an AGM. Dr Pisarska's report was considered at the meeting. The doctor opined that the applicant has mobility problems, she needs to use her walking frame all the time to provide for her safety. The applicant stated that at the meeting she was told "you didn't want rails, you didn't want a ramp, you went for the lift, and what good is that if you live on the 3d floor". The applicant was also told at the meeting, "you don't have a disability you only have a sore back".
26. On 20 February 2024 the applicant obtained a Specialist Report from Dr Arturs. That report was forwarded to the strata manager.
27. On 13 March 2024 the strata manager issued a work order to obtain quotes for a concrete path and a ramp to her Lot. The contractor was requested to provide a quote for a concrete pathway and a ramp for the applicant to be able to enter her apartment through the garden area. There has been no progress made on the last work order.
28. Put briefly, the applicant's case is that the Tribunal has power to make the order pursuant to s 232(1)(f) of the SSM Act 2015 because the Parliament intended to allow "for something not previously provided for in the 1996 Act. That is, there was no provision in s 138 of the 1996 Act, a predecessor to s 232 of the 2015 Act, which is sub-section 232(1)(f) which relevantly is as follows:

(1) Orders relating to complaints and disputes The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following...

...(f) an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act.

1. I have decided, for the reasons given below, to dismiss the applicant's application. I am satisfied that there is no conferral of jurisdiction on the Tribunal under the SSM Act to make the orders sought by the applicant on the basis that s 49M of the ADA prohibits the Owners Corporation from exercising or failing to exercise its function in relation to common property in the manner that indirectly discriminates against the applicant.
2. Under s 9 of the SSM Act, the owners corporation for a strata scheme has the principal responsibility for the management of the scheme. The owners corporation has, for the benefit of the owners of lots in the strata scheme, the management and control of the use of the common property of the strata scheme, and the administration of the strata scheme.
3. The Tribunal has jurisdiction only in respect of those matters for which legislation, referred to in the Civil and Administrative Tribunal Act 2013 (NSW), s 4 as "enabling legislation", has conferred such jurisdiction.
4. The Civil and Administrative Tribunal Act expressly identifies some of the legislation to which Division jurisdiction is conferred. For example, the Civil and Administrative Tribunal Act, Schedule 4, Consumer and Commercial Division (CCD), the Property and Stock Agents Act and the Strata Schemes Management Act are listed, among other, in that Schedule. The legislation listed in Sch 4 expressly identifies which jurisdiction is conferred on the Consumer and Commercial Division. There is no conferral of jurisdiction to CCD concerning decisions made in respect of ADA.
5. The Civil and Administrative Tribunal Act expressly identifies in Schedule 3, cl 1(1) and 3(1)(a) jurisdiction conferred on Administrative and Equal Opportunity Division which includes, among other, the Anti-Discrimination Act 1977.
6. Accordingly, having regard to the submissions of the parties and my own consideration of the legislative provisions, I am satisfied that there is no conferral of jurisdiction on the CCD with regard to decisions made by the respondent with respect to indirect discrimination on the ground of mobility disability alleged by the applicant.
7. The objects of the SSM Act are as follows in s 3:

(a) to provide for the management of strata schemes,

(b) to provide for the resolution of disputes arising from strata schemes

1. I will briefly summarise the arguments and the relevant law under this heading as to whether the Tribunal has jurisdiction to make an order sought by the applicant.
2. Section 232 of the SSM Act confers a power on the Tribunal to settle disputes or rectify complaints as follows:

232 Orders to settle disputes or rectify complaints

(1) Orders relating to complaints and disputes The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following -

(a) the operation, administration or management of a strata scheme under this Act,

(b) an agreement authorised or required to be entered into under this Act,

(c) an agreement appointing a strata managing agent or a building manager,

(d) an agreement between the owners corporation and an owner, mortgagee or covenant chargee of a lot in a strata scheme that relates to the scheme or a matter arising under the scheme,

(e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,

(f) an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act.

(2) Failure to exercise a function For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if -

(a) it decides not to exercise the function, or

(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.

(3) Other proceedings and remedies A person is not entitled -

(a) to commence other proceedings in connection with the settlement of a dispute or complaint the subject of a current application by the person for an order under this section, or

(b) to make an application for an order under this section if the person has commenced, and not discontinued, proceedings in connection with the settlement of a dispute or complaint the subject of the application.

(4) Disputes involving management of part strata parcels The Tribunal must not make an order relating to a dispute involving the management of a strata scheme for a part strata parcel or the management of the building concerned or its site if -

(a) any applicable strata management statement prohibits the determination of disputes by the Tribunal under this Act, or

(b) any of the parties to the dispute fail to consent to its determination by the Tribunal.

(5) The Tribunal must not make an order relating to a dispute involving a matter to which a strata management statement applies that is inconsistent with the strata management statement.

(6) Disputes relating to consent to development applications The Tribunal must consider the interests of all the owners of lots in a strata scheme in the use and enjoyment of their lots and the common property in determining whether to make an order relating to a dispute concerning the failure of an owners corporation for a strata scheme to consent to the making of a development application under the Environmental Planning and Assessment Act 1979 relating to common property of the scheme.

(7) Excluded complaints and disputes This section does not apply to a complaint or dispute relating to an agreement that is not an agreement entered into under this Act, or the exercise of, or failure to exercise, a function conferred or imposed by or under any other Act, if another Act confers jurisdiction on another court or tribunal with respect to the subject-matter of the complaint or dispute and the Tribunal has no jurisdiction under a law (other than this Act) with respect to that subject-matter.

1. The applicant argued that the to succeed in her claim she must as set out in, Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147 establish the following:

(1) The party bring the application must be an "interested person" (as defined by s 226 of the SSM Act); original owner or building manager.

(2) There must be a "complaint" or "dispute" about a matter that falls within the provisions of s 232 (1) (a)-(f) of the SSM Act.

(3) The application must be brought within any applicable limitation period.

(4) The "complaint" or "dispute" must give rise to a cause of action of a type that an award of damages is appropriate to "settle" the dispute. Such a cause of action may be a common law cause of action (e.g. contract; tort) or the type of causes of action that exist under the SSM Act identified by the Court of Appeal in Vickery. The Tribunal has no jurisdiction to consider purely equitable causes of action (Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289 at [67]- [76]; Pongrass v Small [2021] NSWCATAP 314 at [81]).

(5) The cause of action must be sufficiently proximate to the matters in s 232 (1) (a)-(f) that an award of damages is the appropriate remedy. The "complaint" or "dispute" cannot be "about" a matter that falls within s 232 (1) (a)-(f) of the SSM Act unless there is such proximity. There must be a causal nexus between the identified breach and the damage sustained.

(6) If there is to be an award of damages, then the applicant must sufficiently prove loss caused by the breach of the identified cause of action. If no loss is sufficiently established, the Tribunal may award nominal damages or no damages at all (McCrohon v Harith [2010] NSWCA 67 at [118]- [126]; Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31 at [41]- [42]; Edwards v State of New South Wales [2021] NSWSC 181 at [523]- [525])

(7) The "complaint" or "dispute" must not be an excluded matter under s 232 (7) of the SSM Act.

1. The applicant submitted that s 49M of the ADA prohibits the respondent from exercising or failing to exercise its function in relation to common property in a manner that indirectly discriminates against the applicant. Section 49M is as follows:

49M Provision of goods and services

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability -

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

1. The applicant submitted that by virtue of s 49M, her matter is brought within the ambit of s 232(1)(f) of the SSM Act. That is, ADA prohibits direct and indirect discrimination in the provision of good and services on the ground of disability. The applicant argued that her claim is for indirect discrimination which arises because the respondent imposes a requirement (steps and no rail at entrance to the common property building) that applies to everybody but unfairly disadvantages people with disability affecting mobility and is not reasonable in all the circumstances, subject to defence of hardship. In support of her contention the applicant cited the following from Hulena (a NSWADTAP decision):
2. The following passages in Hulena are relevant in making the decision in this matter:

22 Tribunal's interpretation of the requirements and conditions principle. With respect, we agree with Ms Hulena's submission that the Tribunal misunderstood the reasoning of the majority in Amery. The majority did not say that the alleged perpetrator must 'impose' the requirement or condition by an overt or express act or practice. Rather, the inference that can be drawn from the majority's decision was that the requirement or condition must be causally linked to the alleged perpetrator by some decision or practice made or adopted by it.

Tribunal's application of the requirements and conditions principle. We also agree with Ms Hulena that the facts in Amery are distinguishable from the facts in this case because, in the present case:

a) the pedestrian access requirement is not a requirement that flows from compliance with any statute or regulation or from any other externally imposed source;

b) the Tribunal found that the body corporate provided the service of providing accessible entrances and exits from individual apartments within the complex. If the body corporate has provide that service then who, but for the body corporate, has required Ms Hulena to access her apartment via those entrances and exits;

c) construction of a building that met design specifications at the time of construction does not remove from the body corporate the ongoing responsibility of maintaining and repairing the common areas in accordance with current anti-discrimination legislation. If the body corporate provides the service of providing accessible entrances and exits from individual apartments within the complex, it must do so in accordance with legislation in force from time to time which includes compliance with the AD Act.

1. It follows from the decisions in Hulena and Araya that an antidiscrimination case is possible to be made against the owners corporation. However, I agree with the respondent that s 49M of the ADA does not confer or impose any function on the owners corporation under s 232(1)(f). Section 49M makes it unlawful for any person (including an owners corporation) to discriminate against another person on the grounds of mobility disability. In Feedback Deli the Presiding Senior Member cited from the "Principles of Statutory Interpretation: The Meaning of Meaning" in which it was stated that the overall objective of statutory construction is to give effect to the purpose of the Parliament as expressed in the statutory provisions.
2. The basic principles of statutory construction require that the language be read in context and having regard to the objective which it was designed to promote, however the primary focus must remain upon the text. It follows from the above that in Part 9 of the ADA the Parliament intended to regulate and condition the Tribunal's jurisdiction to make orders on the ground that a person has been discriminated against in contravention of s 49M of the ADA.
3. In El Kassir v Anti-Discrimination NSW [2025] NSWCATAD 307 the Presiding Senior Member, Roney KC stated the following about the jurisdiction of NCAT:

The Civil and Administrative Tribunal New South Wales (NCAT) is a statutory tribunal, with no inherent jurisdiction comparable to the Supreme Court of NSW. Rather, section 28 of the CAT Act provides that the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under the CAT Act or any other legislation and under section 29 of the CAT Act, NCAT enjoys the specific jurisdiction bestowed upon it by other empowering legislation. Section 29 of the CAT Act provides that the Tribunal has general jurisdiction over a matter if legislation (other than the CAT Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction, or enforcement jurisdiction of the Tribunal.

1. Broadly speaking, the general functions of the Board are set out in Part 8, Division 4, The functions of the Board, and s 119 of the ADA. Section 89 refers to the form and content of complaints. Section 89A of the ADA provides that a complaint is made "by lodging it with the President". The President must, among other, do any of the following:

(a) the President may accept or decline the complaint.

(b) the President must investigate each complain which it has accepted.

(c) the President may refer a complaint to NCAT, Administrative and Equal Opportunity Division.

(d) NCAT determines the complains in accordance with the powers given tom it in s 108 of ADA.

1. In Vickery v The Owners - Strata Plan No 80412 [2020] NSWCA 284 the Court stated as follows:

To the extent that s 29(1) of the Tribunal Act picks up the provisions of other legislation enabling the Tribunal to make decisions or exercise functions, the relevant source of jurisdiction for present purposes is s 232 of the Strata Schemes Management Act, which, so far as relevant, provides:

232 Orders to settle disputes or rectify complaints

(1) Orders relating to complaints and disputes The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following -

(a) the operation, administration or management of a strata scheme under this Act,

...

(e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,

(f) an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act.

1. Hence, the issue in this matter is whether the language of making "an order to settle a complaint or dispute" embraces a claim for contravention of s 49M of the ADA.
2. In Vickery the Court of Appeal referred to the CAT Act which deals with the composition and functions of the Divisions of the Tribunal in separate schedules. Schedule 4 applies to the Consumer and Commercial Division. Functions are conferred by reference to legislation, relevantly for present purposes in the following terms:

Part 3 Functions of Division

3 Functions allocated to Division

(1) The functions of the Tribunal in relation to the following legislation are allocated to the Division -

...

Strata Schemes Management Act 2015

...

(2) Subclause (1) extends to -

(a) any functions conferred or imposed on the Tribunal by statutory rules made under legislation referred to in that subclause, and

(b) any functions conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of proceedings for the exercise of functions allocated by that subclause (including the making of ancillary and interlocutory decisions of the Tribunal).

1. In Vickery, the Court of Appeal stated that Schedule 4, cl 3 assumes that functions have been conferred on the Tribunal with respect to the specified legislation. They are not necessarily conferred by the Tribunal Act, but by legislation which enables applications to be made to the Tribunal "with respect to a specified matter or class of matters" and otherwise enables the Tribunal to exercise functions with respect to such matters. The functions may be ancillary, in the sense that they are "in connection with" the conduct or resolution of proceedings for the exercise of functions under the specified legislation.
2. The Court of Appeal stated the following in respect of s 232 of the SSM Act

Section 232 of the Strata Schemes Management Act, relevantly set out at [6] above, confers functions on the Tribunal. It is expressed in broad terms. Leaving to one side the reference to "an order to settle", that which may be settled is a "complaint or dispute" about six categories of matter, of which only three are relevant for present purposes. Indeed, it is probably sufficient to focus on subs (1)(e), which identifies "an exercise of, or failure to exercise, a function conferred or imposed by or under this Act". No submission was put to this Court that the imposition of a duty to maintain common property pursuant to s 106(1) was not a function conferred or imposed on the owners corporation. A complaint by a lot owner that common property is in a state of disrepair would readily be characterised as a complaint of a failure to exercise the function of maintaining common property in good repair. If the owners corporation did not accept that there had been a breach of duty, or did not agree with a request in the lot owner's claim for remedial steps to be taken, there would be a "dispute" within the meaning of the chapeau to s 232(1). A claim for damages said to result from the contravention of the duty could form part of a complaint about the failure to maintain the common property and, if rejected, would constitute a dispute "about" the failure of the owners corporation to exercise its function under s 106(1).

1. My view is and I find that s 232(1)(f) does not confer on the Tribunal power to settle a dispute between a lot owner and the owners corporation on the ground that the owners corporation has discriminated against a lot owner in contravention of s 49M of the ADA, arising from the latter's contravention of its obligation to maintain the common property in a state of good repair.
2. I agree with the respondent that, the Anthony Hordern Principle explained as explained in Feedback Deli, does not support the applicant's case. That is, the Tribunal could not make an order under the general making power of s 232 when there was available specific making power under s 150 which in the applicant's complaint are specific powers under Part 9 of the ADA to resolve cases involving direct and indirect discrimination in provision of goods and services.
3. I agree with the respondent that the Anthony Hordern principle provides a presumption in aid of construction of a statute that is applicable in construing a particular provision conferring a power as opposed to general provisions which might otherwise the same power. There is no reason for that principle to only apply to powers in the same statute; Pearce & Geddes, Statutory Interpretation in Australia 6th ed at 4.31.
4. It is clear from the decisions in Araya and Hulena, referred to in detail [46] and [57] above that in NSW the given pathway to make a complaint about direct and indirect discrimination is via the provisions in Part 9 of the ADA. The applicant has not furnished any authority in support of her case to that a complaint about discrimination may be pursued under the provisions of s 232 of the SSM Act.
5. It is important to note that in Araya the Tribunal found that the Owners Corporation is recognised in law as a "person". The Tribunal found in Araya that the Owners Corporation provides services, contrary to the Owners Corporation's contentions, as set out in s 4 of the ADA, including items a) to f).
6. Finally, s 232(1)(f) concerns the exercise of a function "conferred or imposed on an owners corporation under any other Act". "Function" includes a power, authority or duty. I disagree with the respondent and find that s 49M of ADA does not confers a function on the Tribunal to consider direct or indirect discrimination against the applicant under to the provisions of SSM Act.
7. In view of the decision I have made I will not be addressing the other arguments and their merits such as whether the applicant has a disability and whether the applicant has been indirectly discriminated against.

1. The applicant referred in support of her case to: Glenquarry Park Investments Pty Ltd v Hegyesi NSWSC 425 at [60-72], Ridis v Strata Plan 1030812005 NSWCA 24 at [55 -57] (Ridis) Lyon v The Owners Strata Plan No 1104512023 NSWCATCD 31 at [36] (Lyon).
2. I disagree with the applicant that the respondent must exercise its duty under s 106(2) of the SSM Act in a manner consistent with the ADA and renew and replace fittings and fixtures to facilitate equal participation in society of all owners, not only able-bodied owners.
3. I agree with the respondent that the duty of the owners corporation to renew or replace common property is only engaged when it is reasonably necessary. In Glenquarry the majority owners passed a resolution to authorise the Owners Corporation to do extensive building works. The majority passed an ordinary resolution as they did not have sufficient support to pass a special resolution. The applicant Ms Hegyesi challenged the resolutions in the Tribunal, initially to be considered by an Adjudicator. She also applied for an order for the appointment of a managing agent. The Adjudicator refused Ms Hegyesi's application. Ms Hegyesi appealed to the Tribunal under the provisions of SSM Act 1996. Ms Hegyesi's appeal was successful, and orders were made in her favour.
4. The majority appealed the Tribunal's decision to the Supreme Court. I will only refer, for the purposes of this matter, to His Honour's Parker J's reasons in respect of the main issue which was concerned with the lift shaft and the stairs which surrounded it. The lift was installed prior to the second world war. Parker J observed that the lift provided the same function as a modern lift, and that it does not have to meet current code requirements as retroactivity does not apply. Parker J had to decide whether the works in question are to be considered to be a repair and maintenance governed by s 62 of the SSM Act 1996 or whether they fall within the ambit of s 65A. If the works were characterised as maintenance and repair, governed by s 62 of the Act, a special resolution is not required. That is, s 62(2), the Owners Corporation has the power to 'renew or replace' any fixtures or fittings comprised in the common property in carrying out its repairs and maintenance obligations. If the works involved, a) adding to common property, b) altering the common property or c) erecting a new structure on the common property a special resolution is required. If property and fixtures fall into disrepair they may be replaced with modern construction materials and methods.
5. Parker J examined other authorities in relation to s 62 such as Riddis, Thoo and Stolfa. He cited the following two passages from Thoo:

The real distinction between ss 62(1) and (2) on the one hand, and s 65A on the other, is in my opinion dependent upon the purpose or objective of each provision. Subsections 62(1) and (2) are engaged if the proposed work is for the purpose of maintaining and keeping in a state of good and serviceable repair the common property or when any fixtures or fittings in the common property are required to be renewed or replaced. The purpose of s 65A, as its opening words reveal, is to provide for the improvement or enhancement of the common property where otherwise that objective could not be achieved.

I would therefore accept the submission of the Owners Corporation that common property fixtures or fittings must be renewed or replaced under s 62(2) only when they are no longer operating effectively or have fallen into disrepair to the point where their renewal or replacement is called for as they can no longer be kept in a state of good and serviceable repair pursuant to s 62(1). Once it was found, as his Honour did, that the system had not fallen into disrepair but was operating according to its original design capacity, there could be no breach of s 62(2) by reason of the refusal of the Owners Corporation to replace the system. Accordingly, in my respectful opinion the statement by his Honour at [115] of his reasons that there was a specific duty on the Owners Corporation under s 62(2) to keep common property operating efficiently so it could be used and enjoyed by all lot owners, subject only to the passing of a special resolution for its exclusive use, is too broad.

1. Parker J decided that the disputed works are more extensive than is justified by the Strata Corporation's obligation to keep the existing lift in repair. I do not think this decision assists the applicant in the present case because the works sought to be done, an installation of a lift or a ramp, would require the respondent to go beyond its obligation to renew or replace any fixtures or fittings comprised in the common property if considered appropriate. That is, the obligation to renew or replace a fitting or fixture only arises when they have deteriorated or have been damaged or to be operating inadequately, per McColl JA in Ridis, cited by Parker J in Glenquarry.
2. I agree with the respondent that there has been no breach of duty under s 106(2) because the front and the back entrance of the applicant's building have not fallen into disrepair. They are operating according to their original design. Therefore, on the authorities referred to above installing a ramp, which appears to be unfeasible or a lift at the rear entrance of the building, would go well beyond the respondent's obligation under s 106(2) of the SSM Act to renew or replace any fixtures or fittings comprised which have fallen into disrepair
3. The applicant has not furnished any authority in support her case that common property which has not fallen into disrepair, has to be upgraded under s 106(2) because it is no longer operating effectively. That is, the common property must be upgraded to meet the need of an owner with physical disability.
4. Similarly, the applicant has not provided any authority in support of her application that an order may be made in her favour pursuant to s 240 of the SSM Act. Section 240 relevantly provides as follows:

Tribunal may make order of another kind

The Tribunal may deal with an application for an order under a specified provision of this Act by making an order under a different provision of this Act if it considers it appropriate to do so.

1. The application is dismissed under this provision because it does not follow, and it would be illogical and inappropriate to do so in the circumstances where the applicant's application is dismissed, and reasons were given for it under ss 232 and 106(2) of the SSM Act.
2. I note that the respondent was prepared (Submissions dated 26 June 2025) to allow one step access ramp to be installed from the applicant's balcony to make it easier for her to get into and out of her Unit whilst using the balcony as this is the way the applicant currently accesses her Unit.
3. In summary, I am not satisfied that the owners corporation is in breach of its duty under s 106 of the SSM Act by refusing to install a platform lift or a ramp, or that the ADA can be used by this Division to make the order sought under ss 232 or 240 of the SSM Act. It is a matter for the applicant if she wishes to further propose at a general meeting of the owners corporation a new by-law to instal a ramp (such as a common property rights by-law) with the owners corporation to be responsible for the cost of installation and maintenance; or otherwise put forward a Motion that the owners corporation install a ramp. If she does so, and it is unreasonably refused, the applicant may have other rights under the SSM Act if the owners corporation is refusing to comply with any legal obligation regarding persons with disabilities. I make no further comment as to whether the applicant can make a complaint to the Anti-Discrimination Board that may lead to proceedings in the Administrative and Equal Opportunity Division of the Tribunal under the ADA, or what the outcome of such proceedings may be.
4. On the issue of costs, I am not satisfied that there are a "special circumstances" under ss 60(2)-(3) that would justify a costs order against the applicant. If the owners corporation seeks to vary the costs order and argue there are "special circumstances", the owners corporation can make an application in the manner I have set out in my orders.

(1) The application for an order that the owners corporation perform work to the common property is dismissed.

(2) There is no order as to costs, with each party to bear its own costs.

(3) If a party seeks to vary the costs order the following orders apply:

(a) Costs applicant is to file and serve costs submissions (limit 3 pages) and documents by 14 days from the date of these orders.

(b) Costs respondent is to file and serve costs submissions (limit 3 pages) and documents by 28 days from the date of these orders.

(c) Costs applicant is to file and serve costs submissions (limit 2 pages) in reply by 35 days from the date of these orders.

(4) Order 2 ceases to have effect if a cost application is filed in the time permitted by these orders.

(5) Any such submissions are to indicate whether the party agrees that costs can be determined on the papers, without a further hearing.

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.