"135(1) The Registrar must give a copy of an application for an order under this Chapter to the owners corporation for the strata scheme to which the application relates and to any other person, not being the applicant, who, in the Registrar's opinion, would be affected if the order sought were made.
(2) The copy of the application must be accompanied by a notice stating that the person to whom the notice is given may make a written submission to the Registrar within a time specified in the notice, or within a longer time specified in any further notice given by the Registrar.
(3) The Registrar must give a notice to the applicant for the order stating that the applicant may make further written submissions to the Registrar within a time specified in the notice, or within a longer time specified in any further notice given by the Registrar…."
10 The Owners' Corporation submits that the reference to a person who "duly made written submissions" is a reference to a person who made written submissions pursuant to s 135(2) of the Act. However, s 135(2) of the Act does not require a person to make submissions. It requires the Registrar to advise certain persons that they may, if they so choose, make submissions.
11 Riana was notified by the Registrar and advised it could make submissions in writing by a nominated date. It did not. Riana appeared at the hearing before the Tribunal; was, in all respects, the "opponent" at the hearing; and orders were made by the Tribunal contrary to its interests. Further, in accordance with the agreed procedure before the Tribunal, Riana filed written submissions, at the conclusion of the hearing, on 18 October 2006 (Exhibit D).
12 The submissions of the Owners' Corporation seeks a very strict construction of s 200(3) of the Act. If adopted, it would have the effect that persons who did not make written submissions upon invitation (or advice) of the Registrar could never appeal. This would be so, regardless of whether, or to what degree, the orders of the Tribunal affected their interests (assuming that the orders do not require the person to do, or refrain from doing, any act).
13 However, such a strict construction is not necessary. The provisions of s 200 of the Act establish a process for the notification of persons interested of the application for the orders. The application for orders is then referred to the Tribunal: s 137 and s 137A. The Tribunal is governed, in terms of those that may appear or be represented, by the terms of s 193 of the Act and those persons include "a person who received a copy of the notice of the application from the Registrar and who made a written submission" and others who were "entitled to receive a copy of such a notice".
14 Thus, a person who was entitled to receive a copy but did not make a written submission is entitled to appear and/or be represented before the Tribunal. Such a person may have inadvertently, or through error of the Registrar, not received the notice. A construction that disentitled such a person from appealing to this Court ought be adopted only if no other alternative is open.
15 The Tribunal is not required to "hold a hearing" unless there is an appearance before it. It seems that the purpose of s 200(3) of the Act is to confine the right of appeal to those who have a true interest. The difficulty is that by use of the word "written" the legislature may have excluded those who have an interest and are either not notified, or appear and make submissions orally. It is unnecessary to decide this issue, but I doubt that the Act should be so construed.
16 In the current circumstances, Riana has made written submissions. It has done so pursuant to a procedure adopted by the Tribunal. Unless the word "duly" is construed so as to confine the submissions to those made in accordance with the notice of the Registrar, Riana has "duly made written submissions". There is no reason to confine the provisions of s 200(3)(b) in that way. This is not to give the word "duly" no meaning. The submissions filed were required to be filed and s 200(3)(b) does not confine the "written submissions" to those invited by the Registrar.
17 Further, Riana relies on the provisions of s 67 of the Consumer, Trader and Tenancy Tribunal Act. The Owners' Corporation submits that s 201 of the Strata Schemes Management Act operates as a privative clause and excludes the operation of s 67 of the Consumer, Trader and Tenancy Tribunal Act. The Strata Schemes Management Act, by s 200, deals with appeals against "orders" of the Tribunal. These may be made without a hearing and without objection. Section 67 of the Consumer, Trader and Tenancy Tribunal Act deals with appeals against certain "decisions".
18 The two provisions are either inconsistent or they are not. Given that each is a provision of the one legislature, the well-known rules of construction apply. In University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447 Mason J said:
"Inconsistency or repugnancy is a long-standing concept in the field of statutory law. Where the provisions of two statutes are in conflict, so much so that they cannot be reconciled one with the other, there is a consequential need to resolve the problem created by the conflict. In the case of conflicting statutes enacted by one legislature the problem is resolved by regarding the later statute as impliedly repealing the earlier statute to the extent of the inconsistency." (per Mason J at 463)
19 In this case, s 222(1) of the Strata Schemes Management Act expressly applies the provisions of the Consumer, Trader and Tenancy Tribunal Act to proceedings before the Tribunal. Unless s 222(3) of the Strata Schemes Management Act restricts s 222(1) to proceedings excluding rights of appeal therefrom, or s 222(1) itself is so construed, s 222(1) expressly applies the appeal provisions in s 67 of the Consumer, Trader and Tenancy Tribunal Act. However, s 201 would, at least in relation to orders, expressly exclude it. The specific overrides the general: Saraswati v R [1991] HCA 21; (1991) 172 CLR 1; Anthony Hordern & Sons v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1.
20 In construing the provisions that apply to appeals from the Tribunal on this issue, the Court should strive for a construction that applies a consistent purpose to the legislation: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.
21 These provisions can and should be read consistently. Section 200 of the Strata Schemes Management Act, in importing s 52 and s 53 of the Crimes (Appeal and Review) Act, grants a right of appeal against an order of the Tribunal on a ground that raises a question of law alone: see Krishna v DPP (NSW) [2007] NSWCCA 318; Lewis v Spencer [2007] NSWSC 1383. It grants a right of appeal against an order of the Tribunal on a mixed question of fact and law (or on a question of fact) but only by leave of the Court. Section 200 operates only on orders.
22 Section 67 of the Consumer, Trader and Tenancy Tribunal Act grants a right of appeal only where the Tribunal "decides a question with respect to a matter of law" and is a right of appeal against such decisions that may or may not result in orders.
23 In the view I take, s 201 of the Strata Schemes Management Act only restricts appeals against orders. And where an order has been made as a result of a decision with respect to a matter of law, an appeal lies under both s 200 of the Strata Schemes Management Act and s 67 of the Consumer, Trader and Tenancy Tribunal Act: one against the order; and the other against the decision.
24 Riana has standing to appeal the order as a person affected by the order and who appeared and duly made written submissions: s 200(3)(b) of the Strata Schemes Management Act. It also has standing to appeal the decision with respect to a matter of law: s 67 of the Consumer, Trader and Tenancy Tribunal Act.
Is Leave to Appeal Necessary?
25 No party has raised the restrictive nature of the term "question of law alone" and each party has assumed, if Riana has standing to appeal, an appeal lies if error of law were disclosed. Similarly, the question of leave has not been the subject of substantial submissions: see Krishna v DPP (NSW) [2007] NSWCCA 318, citing Morris v The Queen (1987) 163 CLR 454; R v R (1989) 18 NSWLR 74; see also Lewis v Spencer [2007] NSWSC 1383.
26 If leave were necessary, and if it were sought, I would grant it. It was not sought and, for the reasons that now follow, it is not necessary.
The Facts Giving Rise to the Application to the Tribunal
27 As already stated, Riana, the developer of the building to which the Owners' Corporation relates, allocated Unit Entitlements. The primary facts were the subject of an agreed chronology and are repeated by the Tribunal.
28 On 27 March 1985 the Strata Plan, SP 22336, was registered. It comprised 20 residential lots and one lot for future development. Those residential lots comprised two buildings: Lots 1 to 8 in Block A; and Lots 9 to 20 in Block B. The future development lot (Lot 21) was for the development of a further block (Block C).
29 Riana allocated to the twenty residential lots a unit entitlement of 578 and, to the development lot, it allocated a unit entitlement of 10.
30 On 7 March 2001, at or near the completion of Block C, Lot 21 was subdivided to create a further 14 residential units and common property. These were given the residential lot numbers 25 to 38 inclusive. Block C was allocated a total unit entitlement of 563.
31 At an Extraordinary General Meeting of the Owners' Corporation on 7 February 2000, it was unanimously resolved to approve the unit entitlement of 563 to Block C.
32 On 15 November 2004, Mr Leon Cheneval prepared a valuation report for the Owners' Corporation (the Cheneval Report of 15 November 2004). That report was tendered. On 4 April 2005, the Owners' Corporation resolved in general meeting to apply to the Tribunal under s 186 of the Strata Schemes Management Act, for the reallocation of the unit entitlements to all lots in the entire development (i.e. Blocks A, B and C) and for costs.
The Decision of the Tribunal
33 After reciting the facts and certain agreed and/or non-contentious issues, the Tribunal posed for itself what it saw as the two issues: whether the allocation of unit entitlements by registration of the Strata Plan on 7 March 2001 was unreasonable, having regard to the respective values of the lots at that time (s 183(2)(a) and s 183(3) of the Strata Schemes Management Act); and, whether Riana unreasonably allocated the original unit entitlements and, if so, whether the Tribunal should exercise its discretion to award costs against Riana under s 183(6) of the aforementioned Act.
34 Understandably, the Tribunal took the view that the first issue depended on whether relying on the Cheneval Report would be an error of law and, if not, whether, in any case, it should be relied upon.
35 The Tribunal referred, at length, to the reasons for judgment of Santow J (as he then was) in Anderson Stuart & Ors v Treleaven & 1 Ors [2000] NSWSC 283 and to a lesser degree to Spencer v The Commonwealth (1907) 5 CLR 418, and came to the conclusion that it was entitled to rely on the Cheneval Report and that it was conclusive of the value of each unit and that the allocation in issue was unreasonable. The Tribunal said:
"As I stated at the substantive hearing and I now reiterate, in my view, Mr Cheneval's evidence furnished the necessary criteria for testing the accuracy of his conclusions and allowed me to form an independent judgement by applying the criteria furnished to the facts proved. It was intelligible, convincing and could be, and indeed was, tested, by Riana's representative. It went beyond mere ipse dixit and contained within itself materials which could convince the Tribunal of its fundamental soundness (see Makita paragraph 87 Heydon JA).