Sage v The Owners – Strata Plan No 81440

Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199

Australian Telecommunications Corporation v Lambroglou [1990] FCA 689; (1990) 12 AAR 515

Collins v Urban [2014] NSWCATAP 17

Cominos v Di Rico [2016] NSWCATAP 5

Concourt Pty Ltd v Victoria Mary Kerr [2015] NSWCATAP 106

Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109

Donohoe v Albulario [2024] NSWCATAP 166

Donohoe v Albulario [2025] NSWSC 9

Graham O'Keefe v Integral Corporate Property Pty Ltd [2020] NSWCATAP 76

Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92

House v R (1936) 55 CLR 499; [1936] HCA 40

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Nelson v Commissioner of Taxation [2014] FCAFC 163

Pholi v Wearne [2014] NSWCATAP 78

Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69

Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39

Sharp Corporation Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

The Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

U v U (2002) 211 CLR 238; [2002] HCA 36

Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204

Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447

Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88

Houda v Seraphim (Costs) [2025] NSWCATAP 188

1. This is an internal appeal, under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), against a decision made in the Consumer and Commercial Division of the Tribunal on 17 October 2024.
2. Because of the nature of the grounds of appeal, none of which we consider have raised a question of law in substance, we have gone on to consider whether leave to appeal should be granted in respect of each ground proposed by the Appellant. For the reasons set out below, we have declined to grant leave to appeal. In considering the question of leave to appeal, we are not satisfied that the appellant suffered a serious miscarriage of justice to justify a grant of leave.

1. Ms Sage, the appellant, is a lot holder in a residential apartment complex in Sydney, and the respondent is the owners corporation for the apartment complex. The respondent has, among other things, statutory responsibilities for the ongoing maintenance of the building.
2. The appellant has experienced water ingress into her unit on several occasions, resulting in damage to her apartment and mould growth. It is that issue which is primarily at the heart of the dispute between the parties.
3. In January 2024, the appellant brought proceedings in the Tribunal against the respondent in which she sought various orders under the Strata Schemes Management Act 2015 (NSW) (SSM Act).
4. The proceedings were listed for hearing before the Tribunal on 17 October 2024. The appellant represented herself at the hearing, while the respondent was represented by counsel and solicitors.
5. While the Tribunal made orders, which are described as being orders by consent, it is clear that only some of the orders were made by consent, and the Tribunal had declined to make some orders sought by the appellant.

1. An appeal is not an opportunity for a dissatisfied or aggrieved party to re-argue the case they put at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
2. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel of the Tribunal: s 80 (2) of the NCAT Act. Where, as here, an appeal is from a decision of the Consumer and Commercial Division, there are further limitations to be applied when considering a grant of leave to appeal from a question that is not a pure question of law: NCAT Act, Sch 4, cl 12.
3. The appellant has sought leave to appeal from the Tribunal's decision at first instance. As will become clear from our discussion of each of the grounds set out in the amended notice of appeal, the grounds identified by the appellant do not raise pure questions of law. Implicit in seeking leave is a concession by the appellant that the grounds on which she seeks to appeal from the Tribunal's decision concern either mixed questions of fact and law or questions of fact.

Questions of law, fact and mixed questions of law and fact

1. There is significant judicial consideration concerning what constitutes a question of law, a question of fact and a mixed question of fact and law: for example, Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [22]- [44]; Sharp Corporation Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 12.
2. A question of law is distinguishable from a mixed question of law or a question of fact alone: Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 at 287, 312-314; [1986] HCA 88.
3. To appeal on a question of law there must exist, in substance, a question; the form of expression alone cannot bring it forth: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 (Haritos) at [92], citing Australian Telecommunications Corporation v Lambroglou [1990] FCA 689; (1990) 12 AAR 515 at 527 and Nelson v Commissioner of Taxation [2014] FCAFC 163 at [11].
4. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [13], the Appeal Panel set out a non-exclusive list of examples of matters that may give rise to a question of law, including:

(1) whether there has been a failure to provide proper reasons;

(2) whether the Tribunal identified the wrong issue or asked the wrong question;

(3) whether a wrong principle of law had been applied;

(4) whether there was a failure to afford procedural fairness;

(5) whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations;

(6) whether the Tribunal took into account an irrelevant consideration;

(7) whether there was no evidence to support a finding of fact; and

(8) w`hether the decision was so unreasonable that no reasonable decision-maker would make it.

1. In Graham O'Keefe v Integral Corporate Property Pty Ltd [2020] NSWCATAP 76, the Appeal Panel at [13]-[15] observed that:

"In order to amount to an error of law, it must be demonstrated that there was no evidence to justify the conclusion of the Tribunal or, alternatively, that no reasonable tribunal could have come to the conclusion that it did: see John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13](7) and (8).

Further, in respect of whether or not the Tribunal failed to take into account a relevant (i.e., mandatory) consideration, the Appeal Panel in Director-General, Department of Finance and Services v Porter [2014] NSWCATAP 6 at [28] stated the following:

"Whilst the question of weight is one for the Tribunal, the Tribunal will not have given adequate attention to a relevant consideration where its process is merely a formulaic reference: see Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with Santow and Ipp JJA agreeing), instead what is required can be described as a proper, genuine and realistic consideration of the relevant consideration: Bruce v Cole [1998] NSWCA 45; (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ. However, as Basten JA warned in Azriel at [51] referring to Spigelman CJ in Bruce at 186, assessing whether the decision-maker has given a proper, genuine and realistic consideration to a mandatory manner must be approached with caution, with care to avoid any impermissible reconsideration of the merits of the decision."

An alleged failure to give 'sufficient weight' to evidence does not identify a question of law: AHB v HSW Trustee and Guardian [ 2017] NSWCATAP 79; House v R (1936) 55 CLR 499. The correct approach is to set aside administrative decisions where the weight given to a factor is considered 'manifestly unreasonable', or where a finding or inference is made in the absence of supporting evidence: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390; Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 at ([70]-[75])."

1. In Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204 at [25]- [40], the Appeal Panel recently discussed what constitutes an error on a question of law. At [33], the Appeal Panel stated the categories of questions of law are not closed, and went on, at [37], to state:

"What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51."

Considerations for leave where an appeal is brought not on a pure question of law

1. The appellant has sought leave to bring her appeal. That is because the grounds of appeal she raises, which we discuss below, do not present questions of law but instead involve either mixed questions of law and fact or questions of fact alone.
2. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel. Often, those decisions refer to what the Appeal Panel said in Collins v Urban [2014] NSWCATAP 17. As explained in that case at [84], it is not sufficient in bringing an appeal merely to show that the Tribunal below was arguably wrong or that there is a bona fide challenge to an issue of fact.
3. Clause 12 of Sch 4 of the NCAT Act requires that the Appeal Panel may grant leave to appeal from a decision of the Consumer and Commercial Division of the Tribunal only where satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

(1) cl 12(1)(a) - the decision of the Tribunal under appeal was not fair and equitable; or

(2) cl 12(1)(b) - the decision of the Tribunal under appeal was against the weight of evidence; or

(3) cl 12(1)(c) - significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. In Collins v Urban, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12 (1) of Sch 4 may have been suffered where:

"... there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."

1. The Appeal Panel in Collins v Uban stated at [77] to [79]:

[77] As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that:

(1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12].

(2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153].

[78] If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence.

[79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55].

1. Where an appeal from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act by any of the reasons set out in cll 12(1)(a), (b) or (c), the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal. In that regard, the appellant must demonstrate something more than the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. In Collins v Urban, the Appeal Panel stated, at [84], that ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(1) issues of principle; or

(2) questions of public importance or matters of administration or policy which might have general application; or

(3) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent, which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(4) a factual error that was unreasonably arrived at and clearly mistaken; or

(5) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result, so that it would be in the interests of justice for it to be reviewed.

1. The matters referred to in Collins v Urban at [84] are, in substance, the same principles applied by appellate courts. As an example, in The Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28, the NSW Court of Appeal stated:

"Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong."

1. We have applied these principles and authorities in our consideration of each ground below, after setting out the Tribunal's decision and its reasons.

1. In its reasons, the Tribunal set out that the appellant had filed points of claim in which she sought the following orders:

(1) failure to repair common property: s 106 of the SSM Act;

(2) compensation for damages, damage to [the appellant's] lot and personal property: ss 106 and 232 of the SSM Act;

(3) need for independent assessment: s 232 of the SSM Act; and

(4) specific performance for repairs and maintenance: s 232 of the SSM Act_._

1. The Tribunal made orders only in relation to item 3 of the appellant's claim. Specifically, the orders of the Tribunal that were recorded as having been made by consent were:

(1) That the respondent must at its own cost engage an independent building consultant to observe and document the damage to the applicant's lot caused by water ingress from the common property balcony to lot 45 and grinding machinery used by the respondent in common property repairs, subject to the applicant giving suitable access to such independent building consultant.

(2) The applicant consents to the respondent's builder and insurance assessor inspecting her lot after the repairs to the common property balcony on lot 45 have been completed and water testing carried out."

1. The Tribunal provided some short reasons setting out the context in which those orders were made. The Tribunal provided reasons for this. In summary, the Tribunal stated that:

(1) it was common ground that:

(a) A waterproof membrane on a common property balcony to lot 45 (Lot 45 Balcony) had failed, resulting in water entering the appellant's lot and causing damage;

(b) the respondent had organised repairs to the Lot 45 Balcony, and those repairs were underway and expected to be completed in November 2024;

(2) the respondent conceded before the Tribunal that it was obliged to rectify all damage to the appellant's lot that had been caused by water ingress from the Lot 45 Balcony;

(3) the respondent agreed to the Tribunal making an order that it must, at its own cost, engage an independent building consultant to observe and document the damage to her lot, subject to the appellant providing access to the independent building consultant. This aspect of the reasons is reflected in the first consent order;

(4) the appellant consented to the respondent's builder and insurance assessor inspecting her lot after the repairs to common property had been completed and water testing carried out. This aspect of the reasons is reflected in the second consent order;

(5) the orders sought by the appellant under s 106 of the SSM Act requiring the respondent to undertake repairs to the Lot 45 Balcony were not necessary to be made, given that the Tribunal had found that such works were already underway and were expected to be completed in November 2024;

(6) as to the claim for compensation for damages to the appellant's lot and personal property made under ss 106 and 232 of the SSM Act, the Tribunal decided that it was not necessary to make an order because the respondent had stated its intention to meet its statutory obligation to repair the appellant's lot, subject to the appellant giving suitable access to it;

(7) the Tribunal also noted that the appellant had expressly withdrawn her claim for damages, and she had informed the Tribunal at first instance that she did not seek an order for payment of money as set out in paragraph 2 of her Points of Claim;

(8) in relation to the claim for specific performance for repairs and maintenance, the Tribunal found at [13.3] of its reasons that:

"... There is no evidence to support the applicant's claim for the repair of the balcony to her lot which is also common property. However, this is an area which should be assessed by the respondent when it inspects the owners lot, including the common property balcony to the lot, to assess the effect of water damage cause[d] by the leaving lot 45 common property balcony."

(9) finally, in relation to the appellant's claim for a reduction or refund of strata levies, the Tribunal found:

"The applicant stated that she wants the Tribunal to reduce or refund strata levies that would or have been raised to rectify the common property on the Lot 45 balcony. There was no rational basis advanced by the applicant for such a reduction in or a refund of strata special levies. I find that it is orthodox practice for an owners corporation to raise funds to repair or maintain common property by the issue of special levies. The applicant also states that the failure to maintain common property has devalued her lot and impacted on the living conditions, warranting financial compensation or adjustment in levies. The applicant has not provided evidence of any devaluation of her lot. ..."

1. The appellant had filed a notice of appeal on 11 November 2024 and was subsequently amended on 4 December 2024 in accordance with procedural directions of the Tribunal made on 27 November 2024. Accordingly, the appeal was filed within the applicable period in r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW).
2. In Cominos v Di Rico [2016] NSWCATAP 5 at [13], the Appeal Panel observed that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principles in s 36(1) of the NCAT Act, it is appropriate for the Appeal Panel to review the appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or basis for leave to appeal. That approach is consistent with the approach taken in courts of appeal, see for, example, Haritos at [94].
3. Nevertheless, the appeal grounds must be reasonably discernible from the material before an Appeal Panel rather than the result of an artificial construct imposed on the material by the Appeal Panel: Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109 (Damico) at [45].
4. Since the appellant has been self-represented throughout the proceedings, we have approached the grounds of appeal as formulated by considering them generally (subject to procedural fairness considerations) to determine whether a question of law, or mixed question of fact and law, has been raised: Cominos v Di Rico at [13]; Prendergast at [12]. While attempting to avoid any artificial construction of the material before us: Damico at [45].
5. The appellant's grounds of appeal were set out in detail in an attachment to the amended notice of appeal. It is convenient that we address each in turn.

1. Appeal Ground 1 asserts, in summary, that the appellant had suffered from a lack of procedural fairness because:

(1) the Tribunal had refused to explain why it had denied the appellant's request that it, the Tribunal, appoint an independent building consultant;

(2) the Tribunal had ignored, or not given proper weight to, the appellant's filed evidence, including building reports from October 2022, photographs and statutory declarations showing water ingress;

(3) the Tribunal had not considered material mailed to it in June 2024 regarding resumed water ingress and structural damage.

1. Further, in her oral submissions, the appellant stated that she had been interrupted and her complaint trivialised at the hearing, that she had been denied the opportunity to participate in the formulation of the orders and that she had never consented to the appointment of an independent consultant. She submitted that "these violations of procedural fairness made the decision legally indefensible".
2. The appellant's formulation of ground one attempts to invoke a question of law by adopting the phrase "lack of procedural fairness". It is trite to state that the Tribunal is required to afford procedural fairness under s 38 of the NCAT Act.
3. We accept that a failure to afford procedural fairness is a question of law: Donohoe v Albulario [2025] NSWSC 9 at [36]- [39]; however, as we have noted above, for a ground of appeal to actually raise a question of law, it must do so in substance, not merely in form: Haritos at [92], [94].
4. The appellant provided the Tribunal with a transcript of the hearing prepared by a third-party transcribing service from a recording of the proceedings that it had obtained through the usual channels. The appellant informed the Appeal Panel that she had decided not to look at any of the material served on her by the respondent because of the manner and lateness with which it had been served. Despite this, we have taken into account the transcript provided, which shows that, contrary to her appeal submissions, the appellant was given extensive opportunities to make submissions and was involved in exchanges with the Tribunal throughout the hearing.
5. Relevant to the first ground of appeal are the following exchanges:

"SNR MEMBER D GOLDSTEIN: As I understand it the Owners Corporation says that it wants to repair, we've been over this, it wants to repair the water damage to your lot property and it wants to send a builder and an insurance inspector in. Obviously there's an insurance claim. Is that correct Mr Barham?

MR P BARHAM: I'm not instructed about that but I am assuming that.

SNR MEMBER D GOLDSTEIN: Well let's make that assumption. So before the Owners Corporation can repair your property they need to come in and figure out what they need to do. And so the simple proposition is will you allow them to do that?

MS L SAGE: Yes, I will, but can I please say something? The reason is why I'm here because they wanted to fix my unit when water continued to penetrate my home. So water was dripping from the balcony above onto my ceilings. And they were in the process of repairing my unit. So I had to fight for my property. I had to fund this report. I had to make them aware that there is a different balcony where the water was coming from. They were concentrated on a very small pipe on the southern side. I had to fight for the western balcony on a different side because they only were looking at the water ingres in the hallway. So when they -

SNR MEMBER D GOLDSTEIN: Well things have moved on Ms Sage. Things have moved on.

MS L SAGE: But water continues to come into my home."

1. Therein followed a long exchange between the appellant and the Tribunal concerning her desire for an independent consultant to assess the damage done to her unit, the fact that damage was continuing to be caused by works being done on other parts of the building, and the extent to which she had allowed access in 2022. The appellant then stated that she wanted an independent consultant to examine the damage to her unit. There was then a lengthy section of the hearing where the appellant relied on the assistance of the translator appointed by the Tribunal to assist her with some words spoken by the Tribunal. Then came the following exchange, which tends to suggest that the Tribunal was making efforts to include the appellant in the formulation of the orders:

"MS L SAGE: I'm asking for a builder, an independent builder rather than the builder who is sent by their own strata and their own people to come and observe and document the damages so that my unit is repaired according to the actual damages and nothing is left behind because this is what is troubling me.

SNR MEMBER D GOLDSTEIN: Is that all you're seeking? So an independent builder to come and observe the damage -

MS L SAGE: To come and observe. Yes, just to make -

SNR MEMBER D GOLDSTEIN: Ms Sage, I have to write all this down and if I have to write it down, you will slow down what you -

MS L SAGE: I'm sorry. I'm very nervous. ..."

1. The Tribunal called an adjournment to allow the appellant some time to compose herself. The exchanges between the appellant, the Tribunal, and the respondent continued in the same vein for some time. The hearing, as recorded in the transcript, shows that the Tribunal repeatedly attempted to have the appellant provide input into the orders proposed to be made and that she was given the opportunity to comment on each order as it arose.
2. Ultimately, the respondent made the following submission, which is recorded at page 30 of the transcript:

"MR P BARHAM: Strictly, there's no need for an independent assessment, but we have positive orders where, you know, somebody is independent, can go in and conduct an assessment. We would also like -

SNR MEMBER D GOLDSTEIN: Sorry, you say you agree that someone -

MR P BARHAM: Well, we don't say it's necessary, but for the purposes of just cutting through this, we will agree to an independent assessor.

SNR MEMBER D GOLDSTEIN: You agree to engage?

MR P BARHAM: Yeah, well, well a suitably qualified independent contractor to identify the lot property which has been damaged by water ingress and - .

SNR MEMBER D GOLDSTEIN: Yeah. You'll do this at your own cost?

MR P BARHAM: Yes.

SNR MEMBER D GOLDSTEIN: So the Respondent agrees to engage an independent. So you've been successful Ms Sage. They're going to agree to what you seek.

MS L SAGE" Can I just say something?

SNR MEMBER D GOLDSTEIN: No."

1. Shortly after this, the Tribunal, having gained the assurance from the respondent's counsel that the contractor's report would be provided to the appellant, proposed to make any such orders subject to the appellant giving suitable access to the independent contractor or inspector. Counsel for the respondent indicated that, according to his note, the appellant had agreed to that course, but the Tribunal directly sought her confirmation in the following exchange:

"SNR MEMBER D GOLDSTEIN: Well, I'll just ask. Ms Sage, do you consent to the Respondent's builder and insurance assessor having access to your lot?

MS L SAGE: Yes, but after the repairs have been done and they have been tested."

1. It is not entirely clear from the passage above whether the appellant had actually consented to the proposed order and was seeking, in addition, to have an inspection of the completed works or whether she was only willing to have the inspection conducted after the works were completed. However, it seems logical to us that the independent contractor would need to inspect the unit both before and after the repairs are conducted.
2. Mr Barham of counsel, who appeared for the respondent at the hearing, conceded that the appellant's unit had been damaged, that the respondent was obliged to repair the damage done and that it had been in breach of s 106 of the SSM Act. This was reflected in the following exchange:

"SNR MEMBER D GOLDSTEIN: In any event you're going to repair the lot?

MR P BARHAM: We're going to repair.

SNR MEMBER D GOLDSTEIN: After [lot] 45?

MR P BARHAM: Yeah"

1. Given the assurance of the respondent, expressly given by its counsel, that it would undertake its repair obligations under the SSM Act and that it would make all repairs required, it was unnecessary for the Tribunal to provide the appellant with further input because she had been entirely successful, in substance, in the principal relief she had sought.
2. The respondent then made some submissions concerning the other orders, about which the appellant also addressed the Tribunal, in parallel with the respondent's submissions. What was revealed was that the appellant expressly abandoned one aspect of her claim for damages of $309.00, which was the only money claim sought in the proceedings. The other claim, for specific performance of the repairs, was met, substantially, by the respondent's concession that it was obliged to make those repairs.
3. We are not satisfied, having regard to the appellant's oral and written submissions, the orders, the reasons and the transcript, that the appellant, in fact, has raised a question of law in her first appeal ground. Specifically, it does not appear that ground, taken as a whole, meets the second consideration described by Basten AJ in Donohoe v Albulario at [32], where his Honour said:

"Secondly, the question must be one which gives rise to an error in the sense that there is a causal or dispositive connection between the legal issue sought to be raised and the outcome of the case. Whether it was expressly raised in the Tribunal may not be a critical consideration, so long as there is an issue "necessarily implicit" in the Tribunal's conclusion."

1. Here, nothing that was done by the Tribunal, and which is complained about in the appellant's first ground, was connected to the outcome of the proceedings or the orders made.
2. Even if we had accepted that the Appeal Ground 1 raised a question of law, having interrogated the transcript, submissions, reasons and orders, it is clear to us that there had been, in fact, no failure by the Tribunal to afford the appellant procedural fairness at the hearing and the appeal on this ground would have been dismissed. However, because we have concluded that the appeal ground does not, in substance, raise a question of law, then we have not considered it necessary to determine the aspect of the appeal other than to consider whether to grant leave to appeal.

Whether to grant leave to appeal with respect to Appeal Ground 1

1. To the extent that Appeal Ground 1 may be said to raise a mixed question of law or fact or a question of fact alone, we decline to grant leave for the appellant to proceed on this ground. Having regard to the transcript, submissions, reasons and order of the Tribunal, we cannot find that there has been a substantial miscarriage of justice for the purposes of cl 12 (1) of Sch 4 of the NCAT Act that could justify a grant of leave on the basis of this ground.

1. Appeal Ground 2 is that, again in summary, the Tribunal had erred in the way in which it applied s 106 of the SSM Act in that:

(1) the respondent had breached its duty under that provision by failing to address water ingress promptly between May and November 2022 "despite multiple reports, inspections and visual observations of the damage";

(2) the October 2022 builders report had documented water pooling on the balcony above the appellant's lot with 100% saturation of the appellant's ceiling, yet the respondent had "delayed repairs and pressured me to accept cosmetic fixes without addressing the source of water ingress"; and

(3) the Tribunal had ignored further evidence concerning the insufficiency of repairs to the southern balcony in November 2022 and the failure of waterproofing on the western balcony, which caused further ingress in June 2024.

1. This ground, when read as a whole, does not raise a question of law. The grounds are entirely focused upon the duties and actions of the respondent. The ground fails to articulate how the Tribunal erred in the application of s 106 of the SSM Act_,_ or that it had failed to do so where required. This ground does not raise a question of law that is connected with the way the proceedings at first instance were determined.

1. Appeal Ground 3 is, in summary, that there was a failure by the Tribunal to address the respondent's "mismanagement of water tests and repairs" on the basis that:

(1) the respondent had "conducted two water tests unnecessarily", which had caused further damage to the appellant's unit;

(2) the respondent had delayed repairs and ignored "evidence of structural and electrical damage, including flooding of wiring and air conditioning systems"; and

(3) the Tribunal had "ignored shoddy repairs unacceptable in any other strata situation."

1. As the authorities have established, a failure to give 'sufficient weight' to evidence does not identify a question of law: AHB v HSW Trustee and Guardian [2017] NSWCATAP 79; House v R (1936) 55 CLR 499; [1936] HCA 40. Accordingly, to proceed to appeal on this ground, the appellant required leave, which she duly sought.

1. Appeal Ground 4 is that the Tribunal had misinterpreted the appellant's builder's report because:

(1) the Tribunal had assumed that the report had been commissioned by the appellant before she purchased the unit. This, according to the appellant, was a critical misunderstanding because it tended to diminish the significance of the report's findings "in proving ongoing OC negligence";

(2) the appellant's builder's report documented widespread damage and mould to the appellant's unit, providing evidence that the respondent had allowed water ingress to persist for years.

1. This ground does not raise a question of law, nor does it competently raise a question of fact. The Tribunal was satisfied with the respondent's concession that it was obliged to conduct repairs to the appellant's lot and that it had scheduled those works, subject to the appellant providing access and its completion of works elsewhere and adjacent to the appellant's lot. Whether the Tribunal misunderstood the circumstances of when or how she obtained her builder's report of October 2022 was irrelevant to the outcome of the proceedings.

Whether to grant leave to appeal on Appeal Grounds 2, 3 or 4

1. As we have noted, Appeal Grounds 2, 3 and 4 do not raise questions of law. Accordingly, the appellant may only proceed to advance with her appeal on these grounds with leave.
2. Having regard to the concessions made by the respondent at the hearing, as set out above under Appeal Ground 1, it is apparent that the respondent accepted its obligations and it was open to the Tribunal to find that it was, in fact, undertaking repairs to the Lot 45 Balcony at the time of the hearing. None of the matters sought to be raised by Appeal Grounds 2, 3 or 4 is relevant to the relief sought by the appellant or the orders ultimately made by the Tribunal at first instance and from which any appeal arises.
3. Having regard to the considerations set out in cl 12 of Sch 4 of the NCAT Act, we are not satisfied that the appellant has suffered a substantial miscarriage of justice. Accordingly, we decline to grant leave with respect to Appeal Grounds 2, 3 or 4.

1. Appeal Ground 5 is not capable of being summarised; we have therefore quoted it directly from the appellant's amended appeal as follows:

● The OC's threats to seek costs and their reliance on legal representation violate NCAT's principles of informal and accessible dispute resolution.

● As a self-represented owner, I have been burdened by the OC's tactics to delay and obstruct justice, while I suffered significant personal, financial and emotional harm caused by the OC's negligence."

1. This ground does not raise a question of law or an appealable error in the Tribunal's reasons. In its written submissions, the respondent identified that this ground is a complaint against it rather than raising an error on the part of the Tribunal. We agree with that submission.
2. Appeal Ground 5 is not a competent ground of appeal, and we decline to grant leave with regard to that ground.

1. Appeal Ground 6 is, in summary, that the Tribunal had not addressed in its reasons "significant new evidence", namely the submission filed in June 2024 that contradicted the respondent's claims that the repairs to a pipe on the southern ledge had been effective.
2. We cannot see that the sixth ground raises a question of law. There is no allegation in the ground that the reasons were inadequate, and indeed we consider that the Tribunal's reasons comply with s 62(3) of the NCAT.
3. Moreover, having regard to the relief sought by the appellant in the proceedings, none of which, on our reading, was dependent upon a finding concerning the extent of the respondent's repairs to date, we cannot detect that this ground seeks to agitate a question of unreasonableness or the taking into account of an irrelevant consideration.
4. It is well established that a first instance Tribunal, like a court, is not required to refer to every piece of evidence or every submission made in the course of its reasons: Concourt Pty Ltd v Victoria Mary Kerr [2015] NSWCATAP 106 at [20]; Amaca Pty Ltd v Tullipan [2014] NSWCA 269 at [14]; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386 (Mahoney JA); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259; U v U (2002) 211 CLR 238; [2002] HCA 36 at [80] (Gummow and Callinan JJ). As the High Court noted in Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at [62] (Gleeson CJ, McHugh and Gummow JJ):

"...A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case."

1. In considering whether leave should be granted to proceed on this ground, we have considered the transcript, submissions, orders and reasons of the Tribunal at first instance, and we are not satisfied that the appellant has suffered a substantial miscarriage of justice on the basis she alleges under appeal ground six. We decline to grant leave to appeal on that ground.

1. At the conclusion of its written submissions, the respondent sought an order for its costs against the appellant payable on the ordinary basis as agreed or assessed. The respondent indicated that it was content for the issue of costs to be determined on the papers.
2. The respondent correctly noted that costs in this case may only be awarded where the Tribunal considered there are special circumstances: NCAT Act, s 60(2).
3. The respondent contends that the following matters constitute special circumstances:

(1) the appellant's case is weak or untenable;

(2) the proceedings, by which we have assumed from the body of the submissions, is intended to refer to the appeal proceedings, are frivolous, misconceived and lacking in substance;

(3) the Respondent had sent correspondence to the appellant well in advance of the hearing of the appeal, setting out the difficulties of her case and the likelihood that she would not succeed. That correspondence, it was submitted, gave the appellant the opportunity to withdraw and also gave her notice that if she elected not to withdraw, an application for costs would be sought; and

(4) the Respondent has incurred costs in running the appeal and should be compensated.

1. Having regard to appeal ground five, we are reasonably certain that any application for costs is opposed by the appellant. For that reason, and the fact that we have declined to make an order for costs, we did not require the appellant to make any submissions on the respondent's costs application. It goes without saying that the appellant was not entitled to her costs because she had been unsuccessful in her appeal, and she was not legally represented in any event.
2. The question of special circumstances and the exercise of the Tribunal's discretion to award costs was recently considered in Houda v Seraphim (Costs) [2025] NSWCATAP 188 at [6]- [10], where the President and DP Britton set out the following principles:

"Section 60(1) of the NCAT Act creates the general rule that each party is to pay their own costs. Section 60(2) gives the Appeal Panel a discretionary power to award costs but only if it is satisfied that there are special circumstances warranting an award of costs". Section 60(3) sets out a non-exhaustive list of factors the Appeal Panel may have regard to in deciding whether there are special circumstances warranting an award of costs.

Section 60 states:

60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party's own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following--

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter that the Tribunal considers relevant.

In Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81, the NSW Court of Appeal considered the meaning of the term "special circumstances" in s 88(1) of the now repealed Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act). While in different terms to s 60 of the NCAT Act, like that provision, s 88(1) of the ADT Act gave the Tribunal power to award costs "but only if it is satisfied that there are special circumstances warranting an award of costs". At [60], Santow JA held (Mason P and Brownie AJA agreeing) that the Tribunal was in error in failing to conclude that special circumstances were established. Santow JA observed: "[I]t suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional". NCAT has consistently applied that statement: see eg Gelder v The Owners - Strata Plan No 38308 [2021] NSWCATAP 109 at [12]; Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 at [107]; James v Department of Justice (Corrective Services NSW) (No 2) [2022] NSWCATAP 216 at [6].

More recently, in Kaye v The Owners - Strata Plan No 4350 [2022] NSWSC 1386 at [70], Basten AJA said that the term "special circumstances" in s 60 of the NCAT Act is "not a term of art":

"[70] ...Its scope and operation will depend heavily on the context in which it appears. A particular circumstance which appears to be special in one case may not be so in another. It is not a phrase which readily gives rise to appellate explication."

Where special circumstances are found to exist, the Tribunal has a discretion to exercise in deciding what, if any, order should be made: Lisle v Courtney [2025] NSWCATAP 121 (Lisle) at [34]. The discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: Lisle at [35]; eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]. Relevant to the exercise of that discretion are those facts upon which the finding of special circumstances was based."

1. We adopt the formulation above in considering the application before us.
2. It is apparent from our reasons above that the appellant's prospects of a successful appeal were weak. The appeal was an unnecessary use of the resources of both parties and the Tribunal. We observe that the resources of the parties could have been better spent resolving the real issues in dispute between them. In that regard, we consider that both parties, however, must share the burden of the proceedings. Therefore, while there exist some matters that may lead to a finding of "special circumstances", we are not satisfied that those matters are sufficient to establish a finding of special circumstances in this case. That is the case even when we have regard to all of the matters relied upon by the respondent in its submissions.
3. Further, even if we had been satisfied that special circumstances existed to warrant consideration of costs, we would then be required to exercise the discretion to award costs conformably with the underlying principle that generally, parties to proceedings in the Tribunal are ordinarily to bear their own costs. In this case, we do not find that any of the matters relied upon by the respondent are sufficient for us to exercise the discretion to award costs in favour of the respondent in this case.

1. Having regard to the above consideration of each of the appellant's grounds, leave to appeal is to be refused and the appeal dismissed, and the respondent's application for costs of the appeal is to be refused.

(1) Leave to appeal is refused.

(2) The appeal is dismissed.

(3) The application for costs of the respondent is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

19 December 2025 - Correction of party to "appellant" in Line 1 of paragraph 37