Selkirk v The Owners-Strata Plan No 2661; The Owners-Strata Plan No 2661 v... [2025] NSWCATAP 328 | Case summary

[3]

Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165

Selkirk v The Owners-Strata Plan No 2661; The Owners-Strata Plan No 2661 v... [2025] NSWCATAP 328 | Case summary | Zoe

[81]

The dispute has a long, complex, expensive, and unfortunate litigious history that evolved from a water leak from the bathroom of the lot detected in early December 2020.
Under s 9(2)(a) of the SSM Act, the owners corporation has, for the benefit of owners of lots in the strata scheme, the management and control of the use of the common property. Under s 9(3)(c) of the SSM Act, the owners corporation has responsibility for maintaining and repairing the common property of the strata scheme. It is not in dispute that the water leak from the bathroom of the lot was from a common property area, and it is unnecessary to set out the distinction between common property and lot property (s 4 SSM Act; and ss 4 and 6 of the Strata Schemes Development Act 2015 (NSW). The distinction between common property and lot property is also discussed in detail in decisions including Owers-Brown v The Owners-Strata Plan No 92562; Nakkan v The Owners-Strata Plan No 92562 [2025] NSWCATCD 67).
The litigation history involves proceedings commenced by the lot owner against the owners corporation in the Supreme Court of NSW in July 2021, which were transferred to the Tribunal in June 2022.
The proceedings commenced in July 2021 sought orders that included (a) reinstatement of carpet and acoustic underlay by the owner of the lot located above lot 5 due to excessive noise; (b) relief from debt recovery fees and interest in respect of owners corporation levies; (c) that the owners corporation perform repairs to the common property areas of the bathroom and reinstate both common property and lot property due to damage caused by a water leak; and (d) damages under ss 106(5) and 232 of the SSM Act for loss of rental income by reason of the uninhabitability of the lot due to the water leak.
The lot owner's proceedings were heard by a Senior Member of the Tribunal (Tyson SM) in February 2023.
On 15 August 2023, Tyson SM dismissed the lot owner's application. Detailed written reasons were provided. For the purpose of this appeal, it is unnecessary to refer to the reasons dealing with the dismissal of the claims regarding noise from the lot above; and levy arrears.
Tyson SM found that although the owners corporation was in breach of its duty to keep and maintain common property in a state of good and serviceable repair under s 106(1) of the SSM Act in respect of the "initial leak" it was not in breach afterwards by reason of the conduct of the lot owner. Tyson SM declined to make a work order in favour of the lot owner because the scope of works proposed by the lot owner, which involved a "like for like" replacement of the bathroom was uncertain and went beyond what was necessary to achieve compliance with the s 106(1) duty, applying the principles in Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 (Hegyesi) at [74] and [111]-[112]. Further, Tyson SM found that after the initial leak the owners corporation was seeking to comply with its duty, and the lot owner opposed its proposed scope of works. Even if breach was established beyond the "initial leak," Tyson SM asserted that damages had not been established under s 106(5) of the SSM Act (Selkirk v The Owners of Strata Plan No 2661 and Sournas [2023] NSWCATCD unreported 15 August 2023 at [239]-[308]).
On or about 4 September 2023, Watersedge Waterproofing and Plumbing Pty Ltd (Watersedge) performed works, on the instructions of the lot owner, to perform an "invasive investigation" of the bathroom of lot 5. Mr White is the director of Watersedge. The works by Watersedge were approximately 3 weeks after the lot owner had lost her application before Tyson SM.
Watersedge had previously provided a quotation to the owners corporation in 2022 that asserted the bathroom needed to be completely stripped of tiles, fittings and fixtures and a new waterproofing membrane installed, and then the bathroom restored by way of re-tiling; rendering of walls; and fittings and fixtures re-installed. The owners corporation did not engage Watersedge. Rather, in late August 2023, the lot owner contacted Watersedge and engaged Watersedge to perform an "invasive investigation" of the cause of the water leak.
The work performed by Watersedge involved stripping out the bathroom of tiles, fittings and fixtures. The owners corporation had not provided the lot owner consent for this work, nor has it subsequently provided consent.
The lot owner appealed the decision of Tyson SM to the Appeal Panel of the Tribunal.
The owners corporation took separate proceedings in the Tribunal that included seeking to restrain the lot owner from performing further alterations and/or repairs of common property without the properly authorised consent of the owners corporation.
On 8 September 2023, the owners corporation obtained an interim injunctive order under the SSM Act from the Tribunal restraining the lot owner from performing unauthorized alterations to common property. The owners corporation also took substantive proceedings seeking to restrain the lot owner from performing further work.
On 6 February 2024, the Appeal Panel allowed the appeal (Selkirk v The Owners-Strata Plan No 2661 [2024] NSWCATAP 17). The Appeal Panel held that the owners corporation had breached its "strict duty" under s 106(1) of the SSM Act, and that breach remained ongoing. The duty of the owners corporation was to conduct repairs that cured the water leak and reinstate the bathroom on a 'like for like' basis. The "resistance and advocacy" of the lot owner in respect of access and works performed by the lot owner did not "discharge the onus" imposed on the owners corporation that the loss by the lot owner was not caused by the breach of the owners corporation, or that the lot owner had "failed to mitigate." The owners corporation could have sought an order from the Tribunal for access to the lot to conduct repairs, and had failed to do so. The matter was remitted back to the Tribunal:

[89]

In November 2020, a water leak was identified as coming from the bathroom of Lot 5, and was entering Lot 2, which is directly beneath Lot 5 in the strata scheme building. That water ingress commenced the series of events that lead inexorably to this decision.
After the water ingress in November 2020, the owner of lot 2 complained to the lot owner that water was "cascading" into lot 2 because the tenants of the lot owner were continuing to use the bathroom.
On or about 4 December 2020, the tenants of the lot owner vacated the lot. Subsequently, the lot owner represented to the owners corporation that she wanted to be involved in the decision making process in respect of repairs to common property.
In December 2020, the lot owner emailed the owners corporation a written 1 year fixed term residential tenancy agreement at rent of $1,750 pw with "Mr Wang" to substantiate her claim for damages due to loss of rental income by reason of the failure of bathroom waterproofing to her lot. It has been subsequently found by Tyson SM and Robertson PM that the written residential tenancy agreement was not genuine (see, also the discussion in Selkirk-Supreme Court at [178]-[184]).
In December 2020, the owners corporation obtained quotations with a scope of works for remedial works to the bathroom of lot 5 from Auseal Waterproofing (Auseal). There were two quotations dated 8 December 2020. One involved removal and replacement of tiles in the shower recess wall area in the amount of $385. The second involved removal of the base and first row of tiles in the shower recess wall area; application of waterproofing membrane; removal and replacement of one wall of tiles in the "common wall;" and restoration of the area in the amount of $2,403.50.
In February 2021, the lot owner was provided with the quotations and scope of works from Auseal Waterproofing. The lot owner informed the owners corporation that she opposed the works sought to be performed to rectify common property, because they would not be 'like for like' so as to adequately repair and restore the bathroom. Further, the proposed works did not comply with Australian Standards.
On 11 February 2021, the strata committee approved the larger quote from Auseal Waterproofing. The lot owner informed the owners corporation that she continued to oppose the works proposed by the owners corporation, and more extensive works were required.
In about March 2021, the lot owner made a claim on the owners corporation's insurer. On 31 March 2021, the insurer rejected the lot owner's claim. The lot owner sought an internal review of that decision, and when that was unsuccessful, made a compliant to the Australian Financial Complaints Authority (AFCA). That compliant was ultimately withdrawn.
In May 2021 and September 2021 the lot owner obtained quotations for repairs and restoration of the bathroom. One was a report from Mr Keir of NSW Building Renovations Pty Ltd; the other was a report and quotation from Mr Bayad of Trade NSW. Mr Bayad's quotation involved the removal and replacement of tiles; waterproofing of floor and walls; removal and restoration of fittings and fixtures; and repainting in the sum of $20,777.90.
In July 2021, the lot owner commenced Supreme Court proceedings. Those proceedings were eventually transferred to the Tribunal and crystallised into claims for repairs to common property; and for damages for economic loss under ss 106(5) and 232 of the SSM Act.
Disputation continued between the owners corporation and the lot owner about access issues and the scope of repairs. By this stage, both parties were legally represented.
In March 2022, the lot owner obtained an email from Mr McIver of WISE (Waterproofing Inspection Service and Education) supporting the lot owner's position that the repair works should involve extensive works, including plumbing works. This information was passed onto the owners corporation.
In October 2022, Watersedge inspected the bathroom at the behest of the owners corporation. In a report dated 8 December 2022, Watersedge recommended the "entire bathroom should be stripped out and completely re-done". Watersedge provided a quotation to the owners corporation dated 21 December 2022 for the removal and replacement of tiles, fittings and waterproofing works of the bathroom together with associated works. The cost of the works was $27,249.62.
In late August 2023, the lot owner engaged Mr White of Watersedge to perform what she and her legal representatives described as an "invasive investigation" of the "cause of the water leak" which resulted in work in early September 2023 that "stripped out" the bathroom of its tiles, fittings and fixtures. The works also extended beyond the bathroom to brickwork of the internal bathroom wall and the internal common kitchen/bathroom wall.
In her claims for a work order and damages, the lot owner's evidence included an expert report of Mr White of Watersedge dated 23 September 2023.
According to Mr White, now the bathroom area was "stripped out" it was "obvious" that walls needed to be re-bricked and that, with associated plumbing and drainage work, the cost of restoring the bathroom would now be "circa $35,000". The report also asserted that the sub-floor of the shower was "unsound" and that "all the current and past leaks into the lot below relate to the shower recess area and or main floor due to no waterproofing membrane being present" (report of D. White of Watersedge dated 25 September 2023 at pp 505-512 of the appeal Court Book).
On or about 3 September 2023, the lot owner paid Watersedge $23,504.77 for the works involved in "invasive investigation" (p 547 Appeal Court Book). Watersedge had rendered an invoice on 28 August 2023.
The lot owner also relied upon an expert report of a real estate agent, Mr Carr, dated 22 March 2024 on the issue of the quantum of rental income the lot owner may have obtained if the premises were capable of habitation.
At the hearing before Robertson PM, the lot owner; Mr White and Mr Carr were cross examined.

[94]

At [181] the Tribunal accepted the lot owner's expert Mr White as "generally honest" and he "genuinely held the opinions that he expressed in his report", but treated his evidence "with some caution" because Mr White was "clearly not an objective or impartial witness". The lack of objectivity and impartiality was attributed to Mr White being "motivated to defend his actions" in providing his original quotation (that involved the complete removal and replacement of the bathroom) and performing an "invasive investigation" that caused the bathroom to be turned into a "bare shell."
The Tribunal also expressed scepticism that Mr White's invoice for the "invasive investigation" works that stripped the bathroom was "in an amount exactly equal" to the "outstanding debt" the lot owner owed the owners corporation. The Tribunal found there was "collusion" between the lot owner and Mr White in respect of the amount in the invoice.
At [185] the Tribunal found that, notwithstanding Mr Carr did not provide a curriculum vitae setting out his experience and expertise, it was "apparent" he was involved in the real estate industry, and the only criticism of Mr Carr's opinion advance by the owners corporation was that Mr Carr's appraisal had assumed the availability of off-street parking (which the owners corporation disputed).
At [186]-[208] the Tribunal dealt with "Issue 1-Causation".
At [187] the Tribunal noted that the owners corporation did not dispute that the lot was uninhabitable as a result of the breach of s 106(1) of the SSM Act "until at least 7 April 2021, and presumably for as long thereafter as it would have taken Auseal to undertake the scope of works it had proposed".
At [188] the Tribunal referred to the period since "that time" as being broken into "three further intervals". The first was up to 17 September 2021, when the owners corporation had issued a notice requiring the lot owner to provide access to the lot, and "a period thereafter to allow for the time it would have taken for the works to be completed. The second was the period "from that time until Watersedge commenced its "invasive investigation" on or about 4 September 2023". The third was the period since "the bathroom was stripped of all its fittings and linings by Watersedge."
At [189], the Tribunal commented that both parties were "somewhat disingenuous" in correspondence in 2021. Although the lot owner did not "at any time explicitly deny the Owners access" for the performance of the Auseal works, the "clear import" was that access would not be granted because she did not agree with the Auseal works and believed that they would be inadequate to repair common property. From April 2021 onwards "the applicant was effectively obstructing the Owners access to carry out the Auseal works".
At [190]-[198] the Tribunal made findings as to whether the lot owner not consenting to access was the cause of her loss and damage.
At [190], the Tribunal found that the lot owner's objection to the owners corporation performing the Auseal scope of works to the bathroom was not the "effective cause of the applicant's unit remaining uninhabitable". The Tribunal stated at [190] that it was "bound by the Appeal Panel's assessment that the Owners obligation (under s 106(1) of the SSM Act) extended to ensuring the (repair) work was completed in such a way as to achieve substantial similarity, in terms of the appearance, quality and amenity of the completed works, to what had been there before". The Auseal works "would not have achieved that outcome."
At [192]-[194], the Tribunal accepted that the "invasive investigation" by Watersedge demonstrated that "there was no waterproof membrane under the bathroom as constructed and that whatever mechanism had originally been utilised to ensure there was no leakage from the bathroom to the unit below had ceased to function". Accordingly, although the lot owner's response to requests for access to perform the Auseal works were "inappropriately confrontational and obstructive," the cause of the bathroom remaining "unusable" until September 2023 was the owner's failure to engage a contractor to undertake works "sufficient to bring about a full repair of the common property tiling, including the achievement of substantial similarity in terms of appearance, characteristics, and quality".
At [195] the Tribunal noted that the owners corporation had obtained other expert advice and quotations regarding the appropriate scope of works to repair the bathroom, but there was no "direct evidence" that any of those experts or tradespersons came to the same view as Auseal.
At [196]-[198] the Tribunal found that the lot owner's objection to the Auseal works were "not ill founded" and that the lot was uninhabitable until 4 September 2023 due to the owner's breach of its duty under s 106(1) of the SSM Act.
At [199]-[208] the Tribunal dealt with the issue of whether the works conducted by the owner in authorising Watersedge to perform an "invasive investigation" that caused the "stripping out" of the bathroom broke the causal link between the owners corporation's breach of s 106(1) of the SSM Act.
At [199] the Tribunal found:

[108]

At [229]-[230] the Tribunal rejected the submission of the owners corporation that a further discount on Mr Carr's assessment of $100 pw should be made due to the absence of a car parking space. Mr Carr had not conceded his appraisal took into account a car parking space that did not exist.
At [231]-[232] the Tribunal found that a management fee of $650 pw (inclusive of GST) plus one week's rent would be payable to an agent to manage the property, and this should be taken into account, but rejected the submission of the owners corporation that a further deduction for ongoing management fees or agent's commissions should be deducted from the damages amount, because the owners corporation did not cross examine Mr Carr on that topic.
At [233] the Tribunal rejected that there should be any damages under ss 106(5) and 232 of the SSM Act for the monies paid by the lot owner to Watersedge for its "invasive investigation", because those works were performed on common property without proper authority under the SSM Act.
At [234]-[240] the Tribunal rejected the lot owner's claim for "loss of use of the money the subject of her claim for lost rent in accordance with the principles in Hungerfords v Walker (1989) 171 CLR 125; [1989] HCA 8 (Hungerfords v Walker)". The Tribunal accepted that, as a matter of principle, such loss may be recoverable, but the lot owner had not provided evidence of "an such additional evidence or other costs." The only evidence before the Tribunal was that the lot owner had mortgages over the property she owned and lived in and the lot the subject of the dispute, and had used rental income to pay the mortgages. The Tribunal was not satisfied that this was sufficient evidence of loss, in circumstances where it had found that the uncorroborated evidence of the lot owner was not accepted, and the lot owner had failed to provide corroborating documentary evidence.
At [238] the Tribunal stated that it was not prepared to give the lot owner an opportunity to re-open her case and adduce further evidence of "consequential losses" because the lot owner had a reasonable opportunity to adduce evidence on this issue.
At [239]-[240] the Tribunal rejected the lot owner's submission that an award of interest at the applicable rate under the Civil Procedure Act 2005 (NSW) would be "an appropriate proxy" for Hungerfords v Walker damages.
At [241]-[246] the Tribunal assessed damages. The Tribunal accepted the evidence of Mr Carr regarding the quantum of loss of rental income in the period between December 2020 and September 2023 ($201,128.57), but applied a 50% discount; and a further deduction of $2,190 for agency management fees the lot owner would have incurred for renting the lot on a long term basis irrespective of the breach by the owners corporation.
The amount calculated was $98,374.29.
At [247]-[249] the Tribunal dealt with the lot owner's claim that she should be 'quarantined' under ss 90 and 232 of the SSM Act from having to contribute to the damages paid to her by the owners corporation under ss 106(5) and 232 of the SSM Act. The Tribunal was satisfied it was appropriate to make such an order.
At [250]-[252] the Tribunal dealt with a work order under s 232 of the SSM Act in respect of rectification of brickwork "to a level necessary to enable reinstatement of the internal cladding". The area involved the walls of the bathroom, including the internal wall separating the bathroom and the kitchen. The Tribunal stated that, other than the "concession" by the owners corporation, it would not have considered it appropriate to order the owners corporation to undertake any work to the bathroom, as "the present state of the bathroom is entirely the consequence of the unauthorised works which the applicant directed Mr White to undertake in September 2023".
At [253], the Tribunal found it was inappropriate for the owners corporation to "meet the cost of rectifying the brickwork". Rather, the obligation of the owners corporation was to repair and maintain the common property. As it was "conceded" the damage to the brickwork was not caused by the lot owner or Watersedge, "it is appropriate to order the Owners to undertake repairs to the brick walls in the bathroom of Lot 5 sufficient to ensure that tiling and/or a waterproofing membrane can be applied to the walls".
In respect of repairs to the "kitchen wall," the Tribunal found at [254]-[255] that although that had not "previously been raised as an issue in the proceedings", by reason of the concession of the owners corporation the Tribunal was satisfied it was appropriate to order the owners corporation to "carry out investigations with a view to determining the nature and causation of the defects and devising an appropriate scope of works".
At [256]-[257] the Tribunal found:

[116]

106 Duty of owners corporation to maintain and repair property

(1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.

(3) This section does not apply to a particular item of property if the owners corporation determines by special resolution that -

(a) it is inappropriate to maintain, renew, replace or repair the property, and

(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

(4) An owners corporation may defer compliance with subsection (1) or (2) in relation to damage to common property until after the taking of action if -

(a) the action is taken by the owners corporation against an owner or another person in relation to the damage, and

(b) the deferment will not affect -

(i) the safety of buildings, structures or common property in the strata scheme, or

(ii) a person's access to or use of the common property or a lot in the strata scheme.

(5) An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.

(6) An owner may not bring an action under this section for breach of a statutory duty more than 6 years after the owner first becomes aware of the loss.

(7) This section is subject to the provisions of any common property memorandum adopted by the by-laws for the strata scheme under this Division, any common property rights by-law or any by-law made under section 108.

(8) This section does not affect any duty or right of the owners corporation under any other law.

[125]

In Selkirk-Supreme Court, Leeming JA emphasised that the test of causation under s 106(5) of the SSM Act needed to be considered in the context of the statutory regime of the SSM Act.
The importance of the interaction between the statutory rights and obligations of the owners corporation and lot owners under the SSM Act in the context of damages under s 106(5) of the SSM Act was considered by Kirk J in Colman v The Owners-Strata Plan 61131 [2025] NSWSC 63.
That decision referred in detail to the power of the Tribunal to approve works to common property (including repairs to common property) performed by a lot owner where the owners corporation had unreasonably refused its consent. In this appeal, s 126 of the SSM Act was not discussed by Robertson PM or Leeming JA. However, it is appropriate to set out the discussion of s 126 by Kirk J due to its role in the statutory scheme under the SSM Act. As Leeming JA held in Selkirk-Supreme Court, the issue of causation (was the loss caused "as a result of a contravention" by the owners corporation of its duty under s 106(1) of the SSM Act?) is a question of fact that is "purposive" and needs to be considered in the full context of the statutory scheme. Kirk J also refers specifically to s 106(5) of the SSM Act.
Neither party referred to Colman in their submissions. However, the decision was published on 20 February 2025, approximately 3.5 months prior to the hearing of these appeals. Both parties had the opportunity to refer to Colman, to the extent that they saw the decision as relevant to the issues in the appeal.
Colman was unsuccessfully appealed to the NSW Court of Appeal (Colman v The Owners-Strata Plan 61131 [2025] NSWCA 203). That decision was published after the conclusion of the hearings in these appeals. However, the NSW Court of Appeal dismissed the appeal, and did not cavil with any of the principles set out by Kirk J.
Colman involved a lot owner who had performed significant alterations to the lot without the consent of the owners corporation, and where there was no common property by-law passed to authorise the works. The lot owner had commenced work on the basis that there was a water leak in common property that required repair, and that further works were necessary by reason of the initial works to repair the common property. The lot owner sought, among other orders, orders from the Tribunal that (a) the owners corporation be ordered to consent to the works because their refusal to consent was unreasonable under s 126 of the SSM Act; and (b) the lot owner be awarded damages under s 106(5) of the SSM Act for the costs incurred by the lot owner in repairing the common property.
The Tribunal dismissed the proceedings. The lot owner unsuccessfully appealed to the Appeal Panel (Colman v The Owners-Strata Plan No 61131 [2023] NSWCATAP 308). The lot owner then appealed to the Supreme Court.
A factual difference between Colman and the circumstances of this appeal is that Colman's ss 106(5) and 232 damages claim was based solely on the amount the lot owner had paid builders to perform works, not, as in the circumstances of this appeal, where a component of Ms Selkirk's claim for damages is loss of rental income, and a different component is the monies she paid to Watersedge for its "invasive investigation" (which, in substance, was either (or both) the lot owner taking measures to repair the common property, or alter the common property). Unlike Ms Selkirk, Mr Colman resided in the lot.
Kirk J referred to the statutory provisions of the SSM Act dealing with when a lot owner could perform works to common property. His Honour noted (at [94]) that the SSM Act should be "construed in a practical way", citing Leeming JA in Selkirk-Supreme Court at [166].
Section 126 of the SSM Act states as follows:

[145]

There is force in the argument. It does not require, however, that s 106(5) be construed as to support a claim for damages which has not been through the statutory process for obtaining approval. As suggested by counsel, cases can be postulated where fairness would support a lot owner being able to recover costs of work done to repair common property where the owners corporation failed to comply with its s 106(1) duty. The owners corporation may have been incompetent, or recalcitrant, or motivated by the self-interest or animus of other lot owners, in declining to undertake necessary work or reimburse the claimant owner for having done it.

The defendant submitted that the appropriate, and only, remedy is for the owner to seek an order from the Tribunal compelling the owners corporation to do the work. In the sorts of circumstances I have described that may be a quite inadequate remedy, potentially productive of further disputation. Whether or not damages could be awarded under s 106(5) in light of Brereton's decision in Seiwa, it appears reasonably arguable that the Tribunal might be able to make a remedial compensatory order under s 232 (noting Vickery, especially at [28], [153]-[156] and [165]-[167]), and/or that in some cases the Tribunal may make such an order under s 229 (note-The Owners-Strata Plan No 63607 v Kinsella [2022] NSWCATAP 184 at [61]). Section 229 authorises the Tribunal to make an order "that provides for any ancillary or consequential matter the Tribunal thinks appropriate". In cases where the Tribunal make other orders directed to works on common property, such as an order under s 126, then a claim for compensation for those works might be regarded as ancillary or consequential to such an order. However, again, it is not necessary to resolve these questions.

It suffices here to note the following. Insofar as damages or compensation can be claimed under s 106(5) or other provisions in the Act for work undertaking by a lot owner to repair common property, then they cannot be claimed for works which have not been approved in the required manner (either prospectively or retrospectively) by the owners corporation or the Tribunal. No such approval has been granted to Mr Colman to undertake the Relevant Works. Given that fact, he cannot claim the cost of undertaking those works pursuant to s 106(5). The Tribunal did not err in law in so holding..."

[162]

(1) Failure to provide procedural fairness at the hearing (Donohoe v Alburario [2025] NSWSC 9 at [36]- [39] Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [60]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [41] (Gleeson CJ), [142] (Kirby J) and [170] (Hayne J));

(2) No jurisdictional power to make an order (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57; at [163] (Hayne J));

(3) A constructive failure to exercise jurisdiction, in the sense of a failure to consider a "substantial, clearly articulated argument relying upon established facts" that was within the jurisdiction of the Tribunal to determine (see e.g. Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]- [12] and [413]; Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [1] and [9]).

(4) Applying the wrong legal principle (in isolation to the factual findings) which materially affected the outcome (Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [38]- [53] (Bimson)). However, the wrong application of the correct legal principles to the facts is an error of mixed fact and law for which leave to appeal is required under s 80(2)(b) of the NCAT Act (TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178 at [42]- [43] and the authorities cited therein).

(5) Making a factual finding where there was no evidence at all to substantiate the factual finding: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91] per Hayne, Heydon, Crennan and Kiefel JJ. However, a wrong finding of fact does not amount to an error of law: Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25 per Brennan J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at [83]-[89]. An erroneous finding of fact, including the drawing of an inference or the erroneous failure to find a fact or failure to draw an inference, which is perverse in the sense that it is contrary to the overwhelming weight of the evidence, is not an error of law: Azzopardi v Tasman QEB (1985) 4 NSWLR 139 at 155 per Glass JA.

[170]

The lot owner's submissions dated 17 April 2025 identify ground 1(a)(i) as applying the wrong legal principle or asking itself the wrong question, but commence the submissions referring to denial of procedural fairness, which is ground 1(a)(ii).
In any event, ground 1(a)(i) is identified as the Tribunal applying a 50% discount to the assessment of damages for loss of rental income "having regard to only two substantive matters". The matters are: (a) the failure of the lot owner to adduce evidence concerning the history of income deriving tenancies prior to the water leak in December 2020; and (b) the lot owner had allowed her sister to occupy the property for a substantial period in 2020.
The lot owner submits the owners corporation "had not in any form contested the fact that the property was an investment unit and that rather, the only contest between the parties was whether the property would have been leased on a short-term basis in breach of a special by-law." The lot owner submits that the owners corporation had not taken issue with whether the lot would have been rented at all in its Points of Defence and had only raised "two specific defences." Throughout the proceedings (before Tyson SM; the Appeal Panel; Leeming JA; and Robertson PM) the owners corporation had "never raised an allegation to the effect that the (lot owner) did not have a general history of renting out the premises (as distinct from short-term leases). The lot owner referred to evidence and submissions before Tyson SM and Robertson PM that the lot owner was "only challenged" on whether the terms of the leases were more than 3 months, in breach of the special by-law, not whether the property had been leased at all.
In respect of the lot owner's sister residing in the premises, the lot owner submits that the only evidence on that issue was from the affidavit of the lot owner where she deposed her sister had resided on a temporary basis, but had paid rent. The lot owner submits it was "not, as a matter of logic" open to the Tribunal to find that the lot owner's sister resided in the premises, but did not pay any rent.
The lot owner submits that "in determining to apply such a large amount to damages on an issue that had not been previously raised as a matter in dispute, the Member therefore failed to afford (the lot owner) procedural fairness."
The lot owner's submissions on grounds 1(a)(i), 1(b) and 1(c) are clustered together in the written submissions dated 17 April 2025.
The lot owner submits that it was "undisputed" that: (a) the lot owner did not reside at the property in December 2020 and had not resided there for a lengthy period of time; (b) as of December 2020, the property was being tenanted; (c) the lot owner "intended to lease out the property"; and (d) there was unchallenged expert evidence by Mr Carr that it would take 7-20 days to find a tenant throughout the relevant period.
The lot owner submits that the test for assessing damages for a loss of opportunity is the test set out in Horan v The Owners-Strata Plan No 68307 [2024] NSWCATAP 118, but the Member "did not follow" that test, and "misdirected itself by focussing on what was said at [60]-[61] of Horan rather the general principles set out thereafter". At [24] of the written submissions, the lot owner distinguishes the facts of this case from Horan. The lot owner submits that the Tribunal was not entitled to take into account the lack of documentary evidence of previous tenancies, but "even if the Tribunal was entitled to take into account the lack of documentary evidence concerning historical tendencies, that was not a matter that could have or should have assumed such significance in the assessment of damages."
The lot owner submits that the Tribunal did not, and could not, have found the lot owner "would have left the property vacant" or "for non-income producing purposes." The task of the Tribunal was to assess "the likelihood or probability" that the lot owner would "successfully lease out the property for the relevant period" , but even if the property was vacant for a short time between tenants, "there was no tenable basis for the Tribunal to properly conclude the property would have remained vacant for 50% of the time" in light of the evidence of Mr Carr. The lot owner submits the 50% discount was "entirely arbitrary and capricious".

[172]

The lot owner's submissions do not clearly articulate an error on a pure question of law, other than denial of procedural fairness.
We do not accept the submission of the lot owner that the owners corporation had admitted, or failed to not admit, or failed to deny, that the lot owner had to established loss of income for the period between the water leak occurring in December 2020 and the works of the lot owner in "stripping out" the bathroom in early September 2023.
In our view, the Points of Defence clearly deny that the lot owner had sustained reasonably foreseeable loss under s 106(5) of the SSM Act, by reason of any breach of s 106(1) of the SSM Act by the owners corporation. The submission that the owners corporation had not "put in issue" by way of a pleading; or the manner in which the owners corporation had conducted the case, that the onus was upon the lot owner to prove loss of income by reason of the premises being tenanted on a basis that did not contravene special by-law 4 is not reflected in the Points of Defence; or the submissions of the owners corporation (both to Tyson SM and Robertson PM); or the manner in which the lot owner was cross examined.
We are not satisfied that, assessed objectively, there was any concession by the owners corporation that the lot owner did not have to prove issues that included: (a) that the premises would have been tenanted for the relevant period; (b) the premises would have been tenanted for a period of more than the 3 month or less period prohibited by special by-law 4 (referred to by Robertson PM as "long term tenancies"); (c) the amount of income (less expenses) the lot owner would have derived from obtaining rent during the relevant period. This is not a matter where there was any type of concession on the pleadings; or in the manner in which the owners corporation conducted its case, that relieved the lot owner of that burden (O'Connor v O'Connor [2022] NSWCA 97 at [65]- [71]; Jain v Dr N Kalakerinos Pty Ltd [2023] NSWCATAP 141 at [111]- [118]).
It is well established that a party asserting that it has sustained loss or damages has to prove that loss or damage. Such principles were concisely summarised by Black J in Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31 at [41]- [42] in the context of the law of contract, but the principles set out at [42] also apply to an assessment of reasonably foreseeable damages under ss 106(5) and 232 of the SSM Act.
In this matter, the lot owner provided a paucity of documentary evidence to establish any consistent history of letting the premises on a "long term" basis prior to the water ingress in December 2020. The lot owner was in a position to adduce such evidence. Her failure to do so, or any strategic decision that it was unnecessary to do so, does not arise from any concession in the Points of Defence, nor in the manner in which the owners corporation conducted its case.
The lot owner submits that the credit findings that were made against the lot owner in respect of the purported written residential tenancy agreement with Mr Wang were, in essence, irrelevant to the assessment of damages. We disagree. The findings on the issue of credit were available to the Tribunal on the evidence before it, and were relevant to whether or not (and to what extent) the lot owner had proved loss of income from December 2020.
The findings of the Tribunal in respect of the lot owner's sister and her period of occupation of the lot were also open to the Tribunal on the evidence before it. Again, we do not accept the lot owner's submission that the findings were irrelevant, or illogical, or irrational.
By reason of the paucity of the documentary evidence the lot owner had provided regarding the periods of rental prior to December 2020, and the income derived from such periods of rental (in the context of the fact that special by-law 4 precluded renting the lot for a period of less than 3 months), the Tribunal was correct in applying the principles of "loss of opportunity" to rent the lot on a "long term" basis.
The operation of special by-law 4 was also clearly relevant to the assessment of damages. Under s 135(1) of the SSM Act, the by-laws of the strata scheme bind both the owners corporation and lot owners. No successful application to invalidate special by-law 4 had ever been made to the Tribunal under s 150 of the SSM Act. In those circumstances, the operation of special by-law 4 was relevant, and could not be disregarded in respect of the assessment of damages.
The lot owner does not dispute that the legal principles for assessment of damages for the loss of opportunity to rent the lot were correctly summarised by the Appeal Panel in Horan v The Owners - Strata Plan No. 68307 [2024] NSWCATAP 118 (Horan). At [66]-[67], after review of the authorities, the Appeal Panel stated:

[182]

Hawach was appealed to the Supreme Court. The appeal was dismissed (Hawach v A & A Building Services Pty Ltd [2025] NSWSC 1174). The Appeal Panel's summary of the principles of procedural fairness was not criticised in Hawach on appeal.
In this matter, we are not satisfied that any denial of procedural fairness was established. The lot owner had a reasonable opportunity to adduce evidence and be heard on the issue of damages under ss 106(5) and 232 of the SSM Act. Further, no practical injustice is established.
The lot owner submitted that the owners corporation had failed to put to the lot owner in cross examination that she had not let the premises on a "long term" basis in the period prior to December 2020, but rather focussed upon whether the tenancies were "short term" in contravention of special by-law 4. Although the principles in Browne v Dunn (1893) 6 R 67 (Brown v Dunn) were not referred to in the lot owner's submissions, there is similarity between that principle and the submission of the lot owner of denial of procedural fairness because certain matters were not directly put to the witness.
Although rules of evidence do not apply to this type of proceedings in the Tribunal (s 38(2)-(3) of the NCAT Act), nevertheless, common law principles of evidence apply in the context of determining whether the hearing was conducted in a procedurally fair way and the parties afforded natural justice including the principles in Browne v Dunn (Rigby v Oxenford [2023] NSWCATAP 79 at [46]; Falzon v Lockrey [2023] NSWCATAP 32 at [91]; Beechwood Homes (NSW) Pty Ltd v Hassos [2023] NSWCATAP 184 at [136]).
We do not accept that the lot owner was denied procedural fairness because she was not directly questioned on whether previous tenancies were "long term" as distinct from being questioned on whether tenancies were "short term" in contravention of special by-law 4. They are two sides of the same coin. The owners corporation was not obliged to put the lot owner matters that her evidence had failed to establish in any event. There is no contravention of the principles in Brown v Dunn, or any other denial of procedural fairness in respect of the issues upon which the lot owner was questioned at the hearing.
The lot owner's submissions do not clearly raise that there was "no evidence" at all to support a factual finding, as distinct from submissions that the factual findings were illogical, irrational and flawed. However, for the sake of completeness, we will address this issue. We are not satisfied that any of the factual findings made lacked any cogent evidence to make the factual finding such that an error on a question of law is established.

[185]

The lot owner contended that the Tribunal had failed to identify the material findings of fact which it relied; or had failed to identify to the legal test to make the findings (particularly at [199] and [208]) that the actions of the lot owner severed the causal nexus between the breach by the owners corporation of its duty under s 106(1) of the SSM Act and loss of rental income post the Watersedge works in September 2023.
The lot owner also said that the bathroom was "still in a state of disrepair" prior to the Watersedge works; and "the property would have been uninhabitable and not able to be leased. The underlying cause of the damages remained the same."
Further, the lot owner agreed that the Tribunal's findings were to the effect that the Auseal works were never going to be satisfactory to remedy the breach of s 106(1) of the SSM Act; that the owners corporation was never prepared to undertake any work other than in respect of the Auseal scope of work; and that it is "clear the bathroom would have remained uninhabitable until the Tribunal had determined these proceedings."
As well, the lot owner pointed to the Tribunal having made no finding that it rejected the evidence of Mr White that the Watersedge, (not Auseal) scope of works was necessary to repair the common property water leak, together with the physical damage caused by the leak.
The lot owner then said that the findings regarding the lot owner being in breach of s 132 of the SSM Act were "irrelevant" to the assessment of damages under ss 106(5) and 232 of the SSM Act by reason of the owners corporation's breach of s 106(1) of the SSM Act "in accordance with the test set out by Leeming JA in The Owners-Strata Plan No 2661 v Selkirk [2024] NSWSC 760; further, that the lot owner being exposed to a s 132 SSM Act order "could not rationally be a matter to properly take into account on the assessment of damages".
In essence, the lot owner had submitted that the "proper question" was whether the lot owner's loss was a reasonably foreseeable consequence of the owners corporation's breach of s 106(1) of the SSM Act, and where the Tribunal had found that the proposed works of the owners corporation would not have rectified the breach, the lot owner should have been awarded damages for the period post 4 September 2023.

[190]

However, Sydney Trains involved claims in contract and tort. Leeming JA referred to Sydney Trains in Selkirk-Supreme Court at [169] and we do not regard Sydney Trains as being inconsistent with, or undermining in any way, Leeming JA's analysis of the principles of causation relevant to damages under ss 106(5) and 232 of the SSM Act.
At common law, in respect of the tort of negligence (and in circumstances where the statutory test of causation in s 5D of the Civil Liability Act 2002 (NSW) does not apply), loss is reasonably foreseeable if it is the type of loss that a reasonable person in the position of the defendant would not regard as far-fetched (Overseas Tankship (UK) Ltd v The Miller Steamship Co (Wagon Mound (No 2) [1966] UKPC 1; [1967] 1 AC 617 at 641-644; Hughes v Lord Advocate [[1963] UKHL 1; 1963] AC 837); Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501; (1985) Aust Torts Reports 80-724).
In contract, subject to the doctrines of remoteness and mitigation (which Leeming JA in Selkirk-Supreme Court conceptualises as components of the issue of causation as distinct from stand-alone doctrines) a breach of contract will have sufficiently caused loss (provided the loss is proved) if it is "a cause" of the loss, not the exclusive cause of the loss (Alexander v Cambridge Credit Corp Ltd (1987) 9 NSWLR 310 at 350 per McHugh JA).
In respect of damages under s 236 of the Australian Consumer Law 2010 (NSW), the contravening conduct is to have "materially contributed" to the loss or damage. If material contribution is established, the onus is upon the respondent to show the loss or damage is referrable to some act or event other than the respondent's contravening conduct (Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 at [14] (Gleeson CJ) and [60]-[61] (Gaudron J)).
However, it is well established in contract, tort and under the ACL (NSW) that the unreasonable actions of the applicant/plaintiff can be determined as the cause of all, or part, of their loss such that they are not entitled to damages (in whole or part)-(e.g. Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 at [20] per McHugh J; March v Stramare (E & H) Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 at [20] per Mason CJ; Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313; 10 BPR 18,235 at [187]; Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 at [140] per McHugh J). Leeming JA in Selkirk-Supreme Court referred to a number of these authorities.
It is also well established that:

[236]

In the 2024 Appeal Panel decision, the remittal under s 81 of the NCAT was put in broad and potentially ambiguous terms. When the Appeal Panel allows an appeal and remits proceedings back to the Tribunal, its powers are set out in s 81 of the NCAT Act. If the Appeal Panel is remitting a matter back to the Tribunal in whole or part for reconsideration, with or without further evidence, in accordance with the directions of the Appeal Panel it is critical that the Appeal Panel makes clear what issues are to be reconsidered (and what issues are not to be reconsidered) with any appropriate directions to facilitate the disposition of the remitted matter-see, for example, Lin v Westerman [2025] NSWCATAP 319 at [78]- [79].
Remitting proceedings without sufficient clarity as to what issues are, or are not, for reconsideration invites further arguments and disputation as to what issues the Tribunal can, and cannot, reconsider. Regrettably, this has arisen in both the proceedings that were before Robertson PM, and these appeal proceedings, with added complexity by reason of Selkirk-Supreme Court.
Throughout the decision (as Leeming JA commented in Selkirk-Supreme Court) there is reference to the "strict duty" of the owners corporation under s 106(1) of the SSM Act. The owners corporation did not dispute that it was in breach of its duty (at [25]). However, as Leeming JA pointed out in Selkirk-Supreme Court in the context of ss 106(5) and 232, breach and remedy are not the same issues.
The basis upon which the Appeal Panel found an error on a question of law is set out at [21]-[29]. The Appeal Panel construed Tyson SM's findings to refuse to make a work order as a misunderstanding that there was "no evidence" available to make the order and that there was a denial of procedural fairness because there was a "concession" and a "common ground" on uninhabitability post December 2020. However, that purported "common ground" on the issue of uninhabitability is subject to the comments on Leeming JA in Selkirk Supreme Court.
At [22] the Appeal Panel referred to the owners corporation having in its possession a "quote from a plumber" that the water leak was due to membrane failure; and at [28] it referred to the "quotation obtained by the appellant". However, there is no clear reference to the quotation of Watersedge dated 21 December 2022.
The Appeal Panel found that, once the owners corporation admitted breach of its duty under s 106(1)-(2) of the SSM Act, the duty extended to an "obligation" to obtain its own evidence on the appropriate scope of works to repair, and the owners corporation could not rely upon any failure of the lot owner to adduce sufficient evidence. At [38]-[39] the Appeal Panel distinguished (Hegyesi) on the basis that, in Hegyesi "...there were jurisdictional deficiencies in formulation of the orders for remediation, because the formulation potentially imposed on the owners corporation in that case, without basis in the findings, a scope of works which went beyond the owners corporation's strict duty".
In respect of the manner in which the Appeal Panel dealt with Hegyesi, it is appropriate to note that the error in Hegyesi was not only that the remedy ordered by the Tribunal went beyond what was necessary to achieve "minimal compliance" with the duty to keep and maintain common property in a state of good and serviceable repair, but the orders left it unclear as to what the owners corporation was being ordered to do ([104]-[105] and [113]).
At [41] the Appeal Panel stated:

[254]

The owners corporation's submissions are dated 6 August 2024 (appeal book pp 1224-1226). The owners corporation submitted that there was a "waterproofing failure" in December 2020, but it could have been appropriately rectified by way of the Auseal quote, rather than the "entire bathroom" being defective, and it being necessary to completely re-tile the bathroom. The owners corporation submitted the evidence of Mr White went beyond "necessity and proportionality" in Hegyesi and the Tribunal should "go no further than the minimum necessary."
The owners corporation submitted the opposition by the lot owner to the Auseal works was motivated by her unfounded subjective belief that mis-matched tiles would reduce the value of her lot, and were merely "aesthetic shortcomings."
In respect of the works performed in early September 2023 without the approval of the owners corporation to remove the "internal cladding" of the bathroom, and the proposal that all tiling and fixtures be replaced, those works (if completed) represented a "improvement of the common property, not maintaining it in a state of good repair". The owners corporation submitted that most of the rectification work was due to the lot owner "stripping out" the bathroom was caused by the unapproved works of the lot owner, and her "reasons for doing so are irrelevant."
In respect of the "additional brickwork," the owners corporation accepted that the demolition works in early September 2023 revealed "underlying brickwork some of which is in poor condition", and although there was "no credible evidence" of defects prior to the "stripping out" of the bathroom the owners corporation "accepted" that Watersedge had not damaged the brickwork and the owners corporation should "meet the cost of rectifying the brickwork to a level necessary to enable reinstatement".
On the "kitchen works" the owners corporation submitted that it was only appropriate to order that the owners corporation undertake investigations to determine the "nature and causation of the defects" with a view to devising an appropriate scope of works to rectify.

[255]

It has been necessary to set out the evolution of the dispute and various findings to determine whether or not an error on a question of law is established.
This is an appeal under s 80(1) of the NCAT Act, where the appeal is concerned with identifying error in the decision (being an error on a question or law, or otherwise, if leave to appeal is sought, whether leave to appeal should be granted), and not a de novo hearing (McNeil v Clarence Valley Council [2025] NSWCATAP 184 at [29]). It is not an appeal where the grounds of appeal warrant a new hearing before the Appeal Panel under s 80(3) of the NCAT Act, and in any event no application was made under s 80(3).
Accordingly, it is for the appellant to establish an error on a question of law (or otherwise, if leave to appeal is raised, that leave to appeal should be granted). The enquiry is not whether we would have made a different decision on the same evidence.
The lot owner has submitted that the manner in which the Tribunal dealt with the issue of a work order was contrary to the remittal of the Appeal Panel. We do not accept that submission. We have set out in great detail the relevant passages of the Appeal Panel decision and the decision of Leeming JA in Selkirk-Supreme Court. There was no term of the remittal that the Tribunal was bound to find that a work order must be made in the terms sought by the lot owner. It remained an issue to be determined as to whether, in the exercise of discretion, a work order should be made under ss 232 or 241 of the SSM Act by reason of the state of disrepair of the common property, with the lot owner's actions in "stripping out" the bathroom in early September 2023 a relevant consideration.
Notwithstanding there may have been an isolated comment by Counsel for the owners corporation, we also do not accept that the owners corporation had ever made a concession in its submissions that the Tribunal was bound to make a work order that reflected the scope of works sought by the lot owner (i.e. the quotation by Watersedge dated 5 March 2024 and the other evidence of Mr White including the 2022 quotation provided by Watersedge to the owners corporation).

[258]

The lot owner submits that the only basis explained in the decision for not making a work order against the owners corporation in the terms sought by the lot owner was the finding at [252] that "present state of the bathroom is entirely the consequence of the unauthorised work which the applicant directed Mr White to undertake in September 2023".
However, reasons need to be read fairly, as a whole, and not in isolation to other related reasons (NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [77] per Bell P (Ward JA agreeing)).
In the context of the other factual findings made by the Tribunal (in particular, the finding at [199]-[203]) it is clear that the Tribunal was satisfied that (a) the lot owner had altered (either for the purpose of repair; or for some other purpose that went beyond merely a limited investigation for the purpose of obtaining expert evidence); (b) there was no approval or authorisation by the owners corporation in accordance with the SSM Act; (c) the work was performed by the lot owner soon after being unsuccessful in her application to the Tribunal for a work order; and (d) the damage to common property was not minor or insignificant.
In that context, although the Tribunal did not make reference to the passages of Leeming JA in Selkirk-Supreme Court at [108] and [176](3), the findings are consistent with the Tribunal being satisfied that the actions of the lot owner constituted "exceptional circumstances" or an "exceptional case" where the Tribunal should decline to order the owners corporation to repair the common property or conduct investigations, other than in respect of the limited matters where the owners corporation conceded that a work order should be made (involving the brickwork and kitchen). Accordingly, it was open to the Tribunal to exercise its discretion not to make a work order of the type sought by the lot owner against the owners corporation.
We are not satisfied that the lot owner has demonstrated that the Tribunal applied an incorrect legal test, or misunderstood the correct legal test to apply, or otherwise committed an error on a question of law in respect of the legal principles under ss 106(1)-(2) and 232, 241 of the SSM Act.
No submission was made that the Principal Member erred in the exercise of discretion under House v The King principles. In any event, we cannot discern a House v The King error of a type that would constitute an error on a question of law.

[285]

For the purpose of r 38A of the NCAT Rules the "determinative factor" is the amount in dispute on appeal, not the amount claimed or in dispute in the proceedings at first instance (Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57]).
When rr 38 and 38A of the NCAT Rules apply, the starting point is not that each party bears its own costs, but common law principles that costs follow the event and the successful party is entitled to be awarded costs to compensate it for the costs it has incurred, subject to well established exceptions such as disentitling conduct. The discretion must be exercised judicially (Vella v Mir (No 3) [2020] NSWCATAP 17 at [28]- [29]; Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 at [206]).
In this matter, we are satisfied that the amount claimed or in dispute at first instance, and the amount in dispute in the appeal, exceeds $30,000. That principle applies to both of the appeals. The lot owner's damages appeal clearly involved an amount in dispute exceeding $30,000. The order challenged in the owners corporation's appeal included that the Tribunal had failed to discount "the apartment's potential rental" in an amount of $100 per week from the amount that was awarded; and it further sought to claim it was indemnified under Special By-law 4. In those circumstances, rr 38 and 38A applies to both appeals (Hanave Pty Ltd v Wine Nomad Pty Ltd; Wine Nomad Pty Ltd v Hanave Pty Ltd (No 2) [2022] NSWCATAP 361 at [61]).
Even if rr 38 and 38A do not apply to the appeals, the nature and complexity of the appeal issues in dispute are such that we are satisfied that "special circumstances" exist under s 60(2) of the NCAT Act, sufficient to cause us to exercise our discretion to depart from the principle under s 60(1) of the NCAT Act that each party bear its own costs (FZK v Secretary, Department of Communities and Justice (No 4) [2025] NSWCATAP 278 at [31]- [41], [52]).
We are satisfied that the appropriate order is that the lot owner pay the owners corporation's costs of Case Number 2025/00034611 as agreed or assessed; and the owners corporation pay the lot owner's costs of Case Number 2025/00093693, as agreed or assessed.

Selkirk v The Owners-Strata Plan No 2661; The Owners-Strata Plan No 2661 v Selkirk [2025] NSWCATAP 328;

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