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[2026] NSWCATAP 329
General information, not legal advice.
NCAT Appeal Panel
2026-10-22
G Sarginson, Deputy President K Merrick, Senior Member
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Medium Neutral Citation: Shah v The Owners-Strata Plan No 7655 [2026] NSWCATAP 329
Hearing dates: 31 March 2026
Date of orders: 22 October 2026
Decision date: 22 October 2026
Jurisdiction: Appeal Panel
Before: G Sarginson, Deputy President
K Merrick, Senior Member
Decision: (1) Time for compliance with order 1 of the Appeal Panel dated 5 November 2025 is extended to 27 November 2025.
(2) Leave to appeal granted.
(3) Appeal allowed.
(4) Set aside orders 1 and 2 made by the Tribunal on 24 June 2025.
(5) The Appeal Panel substitutes the following orders for orders 1 and 2 of the Tribunal dated 24 June 2025 in Case Number 2024/00109491:
1. The costs application is dismissed.
2. No order as to costs, with each party to bear its own costs in accordance with s 60(1) of the Civil and Administrative Tribunal Act 2013 (NSW).
(6) No order as to costs of the appeal, with each party to bear its own costs in accordance with s 60(1) of the Civil and Administrative Tribunal Act 2013 (NSW).
(7) Any party seeking to vary order (6) above must lodge with the Appeal Panel Registry and serve on the other party a miscellaneous matters application identifying the orders sought and the basis for the orders by 14 days from the date of this decision. If such application is made the Appeal Panel will issue further procedural directions and orders.
Catchwords: APPEALS – strata title – refusal of applications under ss 149 and 150 of the Strata Schemes Management Act 2015 (NSW) – costs awarded against lot owner – lot owner successfully appealed the order under s 150 of the Strata Schemes Management Act 2015 (NSW) and Appeal Panel substituted decision – whether error on a question of law or leave to appeal should be granted from Tribunal costs decision – leave granted – costs orders substituted by Appeal Panel – Strata Schemes Management Act 2015 (NSW) ss 143, 149, 150 – Civil and Administrative Tribunal Act 2013 (NSW) ss 60, 80, 81
COSTS – special circumstances – whether established – exercise of discretion – Civil and Administrative Tribunal Act 2013 (NSW) s 60
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Strata Schemes Management Act 2015 (NSW)
Cases Cited: Athens v The Owners-Strata Plan No 47035 (No 2) [2026] NSWCATAP 233
BCA Construction Pty Ltd v Arsovski [2024] NSWCATAP 31
BDK v Department of Education and Communities [2015] NSWCATAP 129
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Cooper v The Owners-Strata Plan No 58068 [2020] NSWCA 250
Frediani v Hall t/as Happy Camper Conversions [2024] NSWCATAP 134
FZK v Secretary, Department of Communities and Justice (No 4) [2025] NSWCATAP 278
GS & CS Holdings Pty Ltd v The Owners-Strata Plan No 63227 [2022] NSWCATAP 206
Hawkins v NSW Land and Housing Corporation [2026] NSWCATAP 121
Hogan v Trustees of the Roman Catholic Church (No 2) [2006] NSWSC 74
Horan v The Owners-Strata Plan No 68307 (No 3) [2026] NSWCATAP 133
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22
James v The Owners-Strata Plan No. SP 11478 (No 4) [2012] NSWSC 590
John Anthony Arena Pty Ltd v Franpina Developments Pty Ltd [2022] NSWCA 139
Khadivzad v The Owners-Strata Plan No 53457 [2019] NSWSC 157
Lane v The Owners-Strata Plan No 2404 [2026] NSWCATAP 73
Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180
McNeill v Clarence Valley Council [2025] NSWCATAP 184
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39;[1986] HCA 40
O’Brien v Women’s Housing Company Limited [2026] NSWCATAP 3
Owners Corporation SP 32033 v Mullins [2015] NSWCATCD 23
Prestige Homez Pty Ltd v Ghag [2025] NSWCATAP 93
Schwartz v Health Care Complaints Commission [2026] NSWCA 162
Selkirk v The Owners-Strata Plan No 2661; The Owners-Strata Plan No 2661 v Selkirk [2026] NSWCATAP 211
Shah v The Owners-Strata Plan No 7655 [2025] NSWCATAP 215
Shah v The Owners-Strata Plan No 7655 (No 2) [2025] NSWCATAP 282
The Owners-Strata Plan No 69140 v Drewe [2017] NSWSC 815
The Owners-Strata Plan No 865 v Carroll [2026] NSWCATAP 58
Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204
Van der Rijt v Collins [2024] NSWCATAP 247
White House Developments Pty Ltd v The Owners - Strata Plan No 70276 (No 2) [2025] NSWCATAP 92
Williams v The Owners-Strata Plan No 3192 [2018] NSWCATCD 77
Texts Cited: None cited
Category: Principal judgment
Parties: Bianca Shah (Appellant)
The Owners-Strata Plan No 7655 (Respondent)
Representation: Solicitors:
Bannermans Lawyers (Appellant)
Moirs Law (Respondent)
File Number(s): 2025/00279009
Publication restriction: Nil
This appeal involves the effect of the Appeal Panel decision in Shah v The Owners*-Strata Plan No* 7655 [2025] NSWCATAP 215 (Shah-Appeal Panel) on the separate costs decision made at first instance. The effect of Shah-Appeal Panel was to change the basis upon which the Tribunal at first instance had awarded costs.
This internal appeal under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) has been brought within the applicable time period under r 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules).
The costs decision under appeal involved the application of ss 60(1)-(3) of the NCAT Act. Under those provisions, a party is to bear its own costs unless “special circumstances” are established by reference to the matters set out in s 60(3) of the NCAT Act. Both parties were legally represented in the Tribunal proceedings. The Tribunal ordered the appellant to pay the respondent’s costs on the ordinary basis for a period of time, and on an indemnity basis thereafter. The salient factual matters are detailed in our reasons.
For reasons that follow, we are satisfied that leave to appeal should be granted, the appeal allowed, the costs orders below set aside, and our orders on the issue of costs be substituted for those of the Tribunal (s 81(a), (c) and (d) of the NCAT Act).
The appellant is the owner of a lot in a strata scheme. The respondent is the owners corporation of that scheme.
For ease of reference, in these reasons for decision the appellant is referred to as the lot owner and the respondent is referred to as the owners corporation.
The lot owner purchased the lot in October 2023. The lot, when purchased, comprised of three bedrooms and one bathroom.
Subsequent to purchase, the lot owner sought to renovate, which involved the alteration of common property of the strata scheme.
The proposed renovations were to convert the lot to two bedrooms; move the existing kitchen to the position of the existing bathroom; and to build two new bathrooms.
The proposed renovation would cause one of the bathrooms to be located directly above the bedroom of the lot below.
The lot owner prepared a common property rights by-law to approve the proposed alteration of common property of the strata scheme.
On 23 January 2024, an extraordinary general meeting (EGM) of the owners corporation failed to pass the Motion for a common property rights by-law of the lot owner to allow the renovation to occur.
On 21 March 2024, at its annual general meeting (AGM), the owners corporation passed a Motion for special by-law 19. That special by-law precluded any lot owner from altering common property to install a bathroom, toilet or laundry above any part of a bedroom, living room or loungeroom of a lot below.
On 22 March 2024, the lot owner commenced Tribunal proceedings (amended on 5 September 2024) seeking orders from the Tribunal under the Strata Schemes Management Act 2015 (NSW) (SSMA).
The main orders sought by the lot owner were:
under s 150 of the SSMA, to invalidate special by-law 19 on the basis that it was harsh, unconscionable, or oppressive;
under s 149, prescribing the making of a common property rights by-law. That application was made on the basis that the common property rights by-law proposed by the lot owner was unreasonably refused at the EGM on 23 January 2024; and
under s 246 of the SSMA, that the owners corporation take all necessary steps to register the common property rights by-law prescribed by the Tribunal under s 149.
On 12 April 2024, at an EGM of the owners corporation, further Motions to approve the proposed renovation works and pass a special by-law failed to pass.
The lot owner prepared a revised renovation and proposed common property rights by-law.
On 18 May 2024, the owners corporation, at a further EGM, unanimously passed a Motion in respect of a revised common property rights by-law of the lot owner. That common property rights by-law was in respect of a revised renovation of the lot and associated common property, with only one bathroom which was located in the position of the existing kitchen.
The lot owner’s Tribunal proceedings were heard on 12 September 2024.
Following that hearing the owners corporation sought to reopen the proceedings to rely on further evidence. The application to reopen was heard on 13 December 2024.
For reasons published on 10 March 2025 the Tribunal (Titterton OAM SM) dismissed the lot owner’s SSMA proceedings (Primary Decision).
The Tribunal dismissed the owners corporation’s application to reopen the proceedings and rely on further evidence. It is unnecessary to set out the reasoning of the Tribunal on that issue, as it is not pertinent to this appeal.
The reasons at [115]-[133] deal with the issue of whether special by-law 19 should be declared invalid on the basis it was harsh, unconscionable or oppressive under s 150 of the SSMA.
Despite the Tribunal identifying at [120]-[125] there was a potential jurisdiction issue because the application to declare special by-law 19 invalid under s 150 of the SSMA had been made before the special-by law had been registered, the Tribunal determined it appropriate to consider the s 150 SSMA application on its merits. At [126]-[133] the Tribunal determined that the lot owner had failed to establish special by-law 19 was harsh, unconscionable or oppressive.
The reasons at [134]-[170] deal with the issue of whether the proposed common property rights-by law that failed to pass at the meeting on 23 January 2024 was unreasonably refused under s 149 of the SSMA.
The Tribunal found at [138]-[140] that the lot owner had not provided written consent to the passing of the by-law at or before the meeting on 23 January 2024 and so the proposed special by-law could not be passed by reason of s 143(1) of the SSMA, citing James v The Owners-Strata Plan No. SP 11478 (No 4) [2012] NSWSC 590; Owners Corporation SP 32033 v Mullins [2015] NSWCATCD 23 and Williams v The Owners-Strata Plan No 3192 [2018] NSWCATCD 77. The Tribunal rejected the evidence of the lot owner that she had provided written consent on or before the meeting.
At [164]-[172], the Tribunal considered the “merits” of the s 149 SSMA application if it was “in error” on the finding of non-compliance with s 143(1) of the SSMA.
The reasons of the Tribunal refer to “deficiencies” in the proposed common property rights by-law in respect of imposing responsibility on the owners corporation for maintenance and repair of the works. Further, “noise and odour” issues would arise if the proposed alteration to common property occurred. The Tribunal stated there was a reasonable basis for voting against the proposed common property rights by-law at the EGM on 23 January 2024.
At [170], the Tribunal referred to the “artificiality” of determining whether a proposed common property rights by-law was unreasonably refused when events had superseded that issue by reason of the passing of the different common property rights by-law on 18 May 2024 that authorised different renovation works. Further, both parties agreed that a substantial amount of the alteration works subsequent to the passing of the common property rights by-law on 18 May 2024 had occurred.
The Tribunal stated at [170]:
“…even if I were satisfied that the respondent unreasonably refused to pass the by-law at the 23 January 2024 EGM (which I am not), I would not have prescribed that by-law now”.
The reasons of the Tribunal do not refer in any detail to the consent to works and proposed common property by-law which failed to pass at the EGM on 12 April 2024. Rather, the focus is upon the EGM on 23 January 2024.
The Tribunal found that the owners corporation was the successful party, and directed the owners corporation to file any submissions in relation to costs within 14 days of the decision, and the lot owner to respond within a further 14 days.
Pursuant to the Tribunal’s orders of 10 March 2025, on 26 March 2025 the owners corporation filed submissions seeking an order that the lot owner pay the owners corporation’s costs of the proceedings:
up to 24 July 2024 as agreed or assessed,
from 24 July 2024 on an indemnity basis, or otherwise as agreed or assessed,
On 6 April 2025, the lot owner filed submissions in response to the owners corporation’s application for costs of the proceedings. The owners corporation filed submissions in reply on 16 April 2025.
By notice filed on 7 April 2025 and amended on 16 May 2025, the lot owner lodged a Notice of Appeal with the Appeal Panel. The lot owner appealed that part of the Primary Decision that determined and dismissed the lot owner’s application for an order under SSMA s 150 to invalidate special by-law 19 on the basis that it was harsh, unconscionable, or oppressive.
There was no appeal from the order to dismiss the part of the application dealing with s 149 of the SSMA, presumably because of the lack of utility in doing so when a revised common property rights by law was passed at the meeting on 18 May 2024.
The owners corporation’s application for costs of the Tribunal proceedings was heard and determined on the papers. In the period between when the appeal from the Primary Decision of the Tribunal was lodged, and its hearing on 7 August 2025, the Tribunal published its costs decision.
The costs decision was published on 24 June 2025.
The lot owner did not seek to amend the grounds of appeal from the Primary Decision to include an appeal from the costs decision. It could have done so (White House Developments Pty Ltd v The Owners - Strata Plan No 70276 (No 2) [2025] NSWCATAP 92 at [42]-[43] and [48]-[49]; Horan v The Owners-Strata Plan No 68307 (No 3) [2026] NSWCATAP 133 at [61]-[62]).
It is the costs decision of 24 June 2025 that is the decision under appeal in this matter.
The Tribunal determined costs in favour of the owners corporation (Costs Decision). Written reasons were provided.
Orders were made for the lot owner to pay the owners corporation’s costs of the Tribunal proceedings up to 24 July 2024 as agreed or as assessed in accordance with the applicable costs legislation, and from 24 July 2024 on an indemnity basis.
The Tribunal’s reasons are summarised as follows:
The failure of the lot owner to provide written consent to the passing of her proposed common property rights by-law on or before the EGM on 23 January 2024 meant the s 149 SSMA application was untenable and doomed to fail, which constituted “special circumstances” under s 60(3)(c) and (e) of the NCAT Act ([27]-[29] of the reasons).
The failure to pass the Motions at the EGM on 12 April 2024 was a “neutral” consideration, not affecting the decision either way, and the owners corporation had failed to establish “special circumstances” under ss 60(2)-(3) of the NCAT Act on this issue ([34]).
The owners corporation had written to the lot owner on 24 July 2024 warning that, as the lot owner had not provided prior written consent to the passing of the common property rights by-law she proposed at the EGM on 23 January 2024, the proceedings would inevitably fail. The letter was not a “Calderbank” offer, but put the lot owner on notice that if the proceedings were not withdrawn the owners corporation would seek indemnity costs. The failure of the lot owner to withdraw the proceedings despite being put on notice of the issue of the lack of written consent was a “special circumstance” under ss 60(2)-(3) of the NCAT Act (at [40]-[44]).
The proceedings were of sufficient factual and legal complexity for “special circumstances” under s 60(3)(d) of the NCAT Act ([50]).
The lot owner had made a representation in writing by her “representative” Mr Soussa who was “speaking” to the strata committee on behalf of the lot owner on two occasions in early May 2024 that she would withdraw the NCAT proceedings if the common property rights by-law was passed on 23 May 2024. The common property rights by-law was passed, and the lot owner did not withdraw the proceedings. This was “special circumstances” under s 60(3)(g) of the NCAT Act ([56]-[57]).
The appeal from the Primary Decision was heard by the Appeal Panel on 7 August 2025 (Appeal Panel Decision).
For reasons published on 2 September 2025, the lot owner’s appeal was allowed.
The Appeal Panel found ([61]) that the Senior Member had failed to apply the correct legal principles under s 150 of the SSMA arising from the NSW Court of Appeal decision in Cooper v The Owners*-Strata Plan No* 58068 [2020] NSWCA 250.
However, the Appeal Panel did not simply allow the appeal and remit the matter back to Tribunal for reconsideration.
Rather, the Appeal Panel set aside order 2 of the orders made on 10 March 2025 (the Tribunal’s order dismissing the lot owner’s application for an order under SSMA s 150 to invalidate special by-law 19 on the basis that it was harsh, unconscionable, or oppressive), and, exercising its power under s 81(1)(d) of the NCAT Act made an order under s 150 of the SSMA declaring that special by-law 19 is harsh, unconscionable, or oppressive.
By reason of its determination under s 81(1)(d) of the NCAT Act, the decision of the Appeal Panel has the effect of being a decision of the Tribunal that special by-law 19 breached s 150 of the SSMA. The Appeal Panel set aside the order of the Tribunal dismissing the s 150 SSMA application, and substituted its own order that special by-law 19 was harsh, unconscionable or oppressive.
The practical outcome is that the lot owner failed before the Tribunal on the application under s 149 of the SSMA, but because of the Appeal Panel substituting its own decision, succeeded in the application under s 150 of the SSMA.
The Appeal Panel further ordered that if either party wished to apply for a costs order in relation to the appeal, they should do so within the period specified in the orders. The Appeal Panel was not requested to, and did not, consider whether the orders made by the Costs Decision should be set aside or varied.
The parties then made costs submissions, and on 7 November 2025 (Shah v The Owners-Strata Plan No 7655 (No 2) [2025] NSWCATAP 282) the Appeal Panel dismissed each parties’ appeal costs application, with the effect that each party bore its own costs of the appeal proceedings. The owners corporation, despite being the losing party in the appeal, had sought the lot owner pay its costs. The lot owner had not sought costs of the appeal, but costs of the owners corporation’s costs application. Both applications were dismissed.
The appeal which is presently before the Appeal Panel is the lot owner’s Costs Appeal, which was lodged on 21 July 2025.
The lot owner makes the appeal to the Appeal Panel under s 80(1) of the NCAT Act, which relevantly provides for an appeal from an ancillary decision to the Appeal Panel on a question of law, or otherwise with leave to appeal.
The lot owner seeks the following orders by way of the Costs Appeal:
that the Appeal Panel pursuant to its power under s 81(1)(d) of the NCAT Act set aside orders 1 and 2 of the Costs Decision and make an order that each party pay its own costs;
in the alternative, that the Appeal Panel pursuant to its power under s 81(1)(e) of the NCAT Act remit the decision back to the Tribunal to be determined by a different Member from the Member who made the Costs Decision;
an order for costs of this appeal proceeding pursuant to s 60 of the NCAT Act;
the Appeal Panel to note that the lot owner is the successful party and is therefore entitled to the benefit of s 104 of the SSMA;
any other order that the Appeal Panel deems fit.
The lot owner has subsequently filed further amended grounds of appeal (27 November 2025) and this decision concerns itself with the grounds of appeal identified in the lot owner’s further amended grounds of appeal.
Amended grounds of appeal were lodged with the Appeal Panel Registry on 26 November 2025 and “further” amended grounds of appeal were lodged on 27 November 2025.
It is the “further” amended grounds of appeal that seek leave to appeal, in addition to appealing on purported errors on a question of law. On 5 November 2025, the Appeal Panel (Blake PM) had made a procedural direction order (procedural direction order 1) that the lot owner lodge and serve an amended Notice of Appeal by 26 November 2025. It logically follows that an amended Notice of Appeal sets out the amended grounds of appeal.
The amendment of the grounds of appeal to include leave to appeal was lodged one day beyond the procedural timetable made by the Tribunal on 5 November 2025. However, the owners corporation had ample time to lodge and serve submissions that addressed the issue of leave to appeal as well as the purported errors on a question of law. The owners corporation did not establish any prejudice by reason of the “further” amended grounds of appeal being lodged one day late, and both parties were able to address the issue of leave to appeal at the appeal hearing.
We are satisfied that it is appropriate to exercise our discretion under s 41 of the NCAT Act to extend procedural direction and order 1 of the Appeal Panel dated 5 November 2025 under s 41 of the NCAT Act to 27 November 2025, having had regard to the principles for an extension of time in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22].
The further amended grounds of appeal identify the following grounds of appeal:
Whether the Tribunal identified the wrong issue by determining that the owners corporation was the successful party;
Whether the Tribunal applied the wrong principle of law by making the costs decision on the basis that the owners corporation was the successful party;
Whether the Tribunal took into account an irrelevant consideration with respect to the owners corporation being the successful party;
Without the Tribunal failed to take into account a relevant consideration, that being that the lot owner was partly successful;
Whether the Tribunal’s decision to award costs to the owners corporation on the basis that it was the successful party was so unreasonable that no reasonable decision maker would make it.
If the Tribunal had made its decision in line with the findings of the Appeal Panel, that is that each party was partly successful, would the Tribunal have made an order that each party pay its own costs?
If the Appeal Panel Decision was available for the Tribunal’s consideration in the first instance, would it have made the same determination in the costs decision?
Did the above failures by the Tribunal lead to a material error in the costs decision?
The further amended grounds of appeal also seek leave to appeal as follows:
“The Appellant submits that leave to appeal is not required as the above questions are with respect to errors of law. However, if the Tribunal finds that any of the above questions raise errors of fact and law, the Appellant seeks leave on either or both of the following basis:
A. There has been a substantial miscarriage of justice, and the decision was not fair and equitable. That is, the Appellant has been ordered to pay costs in circumstances where each party was partially successful, meaning that each party should have been ordered to pay their own costs; and
B. Significant new material is now available that was not available at the time of the hearing of the Costs Judgment being the AP Proceedings decision.
80 Making of internal appeals
…
(2) Any internal appeal may be made:
(a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and
(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including—
(a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and
(b) a decision concerning the awarding of costs in proceedings.
What is a question of law was extensively discussed by the Appeal Panel in Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. Examples of types of questions that have been regarded as pure questions of law have been addressed in many decisions of the Appeal Panel, including O’Brien v Women’s Housing Company Limited [2026] NSWCATAP 3 at [125]. They include (citations omitted):
Denial of procedural fairness.
Making orders without jurisdiction.
A constructive failure to exercise jurisdiction.
Applying the wrong legal principle (in isolation to the factual findings) which materially affected the outcome
Making a factual finding without any evidence to support that factual finding.
“[41] Where the ground of appeal does not raise a pure question of law, the appellant may seek leave to appeal.
[42] 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 quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough, as a summary, to refer to Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28], where Gleeson JA (on behalf of the bench) said:
“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.” (Citations omitted)
[43] Further, as Basten JA said (White JA agreeing) in Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 (Hungry Jack’s) at [9]:
“... more is required than identification of error on the part of the trial judge, even if it can be said that the error is reasonably clear. Generally, the court will also need to be satisfied that there is a matter of some public importance engaged and that the costs of further litigation are not disproportionate to the amount in issue. Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice.” (Citation omitted)
(1) Hungry Jack’s was cited approvingly in Amirbeaggi v Matrix Group Co Pty Ltd [2021] NSWCA 21 at [9].
12 Limitations on internal appeals against Division decisions
(1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because—
(a) the decision of the Tribunal under appeal was not fair and equitable, or
(b) the decision of the Tribunal under appeal was against the weight of evidence, or
(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
Note.
Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other ground
“[76] … [I]t should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) 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.
An appeal to the Appeal Panel under s 80(1) of the NCAT Act does not simply provide a losing party before the Tribunal with the opportunity to run its case again, nor is it sufficient for an appellant to disagree with the outcome and to contend there should have been a different outcome: Frediani v Hall t/as Happy Camper Conversions [2024] NSWCATAP 134 at [30].
Even if an appellant from a decision of the CCD has satisfied the requirements of cl 12(1) of sch 4 the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act (Cusumano at [42]-[43]; Collins v Urban at [84]).
Leave to appeal from costs decisions is not granted lightly. The NSW Court of Appeal stated in John Anthony Arena Pty Ltd v Franpina Developments Pty Ltd [2022] NSWCA 139 at [18]:
“[18] More generally, the Court is slow to grant leave in respect of an appeal restricted to a challenge to an order for costs, especially in a case which raises no particular issue of principle, but involves merely the application of well-established principles: Dalma Formwork (Australia) Pty Ltd v Maricic (No 3) [2008] NSWCA 29 at [39]; Hillsea Pty Ltd v Joseph [2020] NSWCA 55 at [47]. That approach reflects not only the fact that decisions on costs are discretionary, but that the issue of awarding costs arises in nearly all cases, and trial judges are generally best placed to weigh up the interests involved.”
The lot owner’s submission focus upon purported errors of law.
The lot owner submits that the Tribunal applied a “wrong principle” because the lot owner had mixed success such that each party should pay its own costs. The lot owner relied upon Hogan v Trustees of the Roman Catholic Church (No 2) [2006] NSWSC 74 and an unreported Tribunal decision from 2023 in which the Solicitors for the lot owner acted for one of the parties (unrelated to the parties in this appeal). In that matter, Sarginson SM (as he then was) had made no order for costs in a strata dispute in circumstances where the issue of costs involved ss 60(1)-(3) of the NCAT Act, and the parties had mixed success on the orders sought.
Why the lot owner’s Solicitors thought it appropriate to rely upon an unreported costs decision is a mystery, in circumstances where there are an abundance of reported decisions (both at first instance and in the Appeal Panel) involving the applicable principles under ss 60(1)-(3) of the NCAT Act. Legal practitioners appearing in Appeal Panel proceedings should usually cite and rely upon publicly reported and published decisions that set out the applicable legal principles. An unreported decision should only be cited and relied upon in Appeal Panel proceedings if it has particular relevance to the appeal, and that relevance is distinct from reported decisions. The unreported decision cited by the lot owner does not have any particular pertinence or relevance to this appeal beyond well-established legal principles referred to in reported decisions.
The lot owner submits that the Tribunal took into account an “irrelevant consideration” because the Tribunal considered that the lot owner had lost on both substantive orders sought, but had only lost on one. The lot owner submits that the Tribunal failed to take into account “a relevant consideration” being that the lot owner was “partially successful.” The lot owner submits that no reasonable decision maker could have made the decision. The submissions refer to the purported errors being material to the decision, and being “inequitable.”
The lot owner submits that the appropriate order is that each party pay its own costs of the Tribunal proceedings.
In respect of costs of the appeal, the lot owner submits the owners corporation should pay its costs of the appeal as there are “special circumstances” under s 60(2) of the NCAT Act. The matters referred to are ss 60(3)(c) (relative strengths) and 60(3)(e) (frivolous, vexatious, otherwise misconceived or lacking in substance). The lot owner seeks an “opportunity” to make further costs submissions in the appeal.
The lot owner’s written submissions do not make any detailed arguments as to why the Appeal Panel should make any order involving s 104 of the SSMA.
The owners corporation submits that none of the grounds of appeal raised by the lot owner establish an error on a question of law. Most of the submissions focus upon criticism of the lot owner’s inability to correctly frame an error on a question of law in the appeal grounds.
However, the owners corporation submits that the Tribunal did not identify that the lot owner was the successful party in respect of the s 150 SSMA application, and submits that “a failure to take into account that the Appellant was ultimately successful on the s 150 Order was not material to the Costs Decision”.
The owners corporation submits that it “wishes to be heard” on the issue of costs of the appeal, and for that issue to be determined “on the papers” in a separate decision.
The written submissions of the owners corporation (and, to a degree, the lot owner) on the issue of costs of the appeal fail to comply with direction and order 10(3) of the Appeal Panel (Blake PM) dated 5 November 2025, which states:
“NOTES
…
(3) If any party wishes to make an application for costs of the appeal, that party is to lodge with the Appeal Registry and give to the other party any submissions on costs addressing the foreseeable possible outcomes, or in special circumstances seek leave to make costs submissions after the outcome is known, at the same time as their submissions in relation to the appeal. The parties should not assume that they will necessarily be given a further opportunity to make submissions once a decision is made.”
Although the grounds of appeal are framed as purportedly raising errors on a question of law, they are not well expressed.
Legally represented parties who do not clearly articulate errors on a question of law and distinguish them from grounds of appeal that require leave to appeal have been the subject of criticism over a number of years.
In Cusumano, the Appeal Panel stated at [39]-[40]:
“[39] Therefore, discernment and care must be taken to ensure the grounds relied upon by the appellant, properly understood, raise questions of law and arise in the proceedings; or whether leave is required.
[40] In light of the above authorities, a question of law should be articulated with sufficient precision to allow an Appeal Panel to identify it as a pure question of law.”
“[3] Although the notice of appeal contained no fewer than 11 grounds each commencing with the words “The Tribunal erred in law in/by …”, none identified any question of law, which might form the subject matter of the appeal as of right. This was a deficiency. It is a familiar deficiency: see Morsingh v Health Care Complaints Commission [2022] NSWCA 106 at [2]. It is not cured by the drafting technique of framing complaints, some of which palpably were complaints about fact-finding unattended by any question of law, by the mantra of the six words “The Tribunal erred in law in” or “The Tribunal erred in law by.” A decision of this Court standing for that proposition which is regularly cited is Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]:
Although an appeal to the Supreme Court only lay as of right on a question of law, the respondent did not identify the questions of law that were the subject matter of the appeal, but rather asserted the magistrate erred in law in various ways. This was wrong (TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; [1988] FCA 119; B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187; Colby Corporation Pty Ltd v Federal Commissioner of Taxation (2008) 165 FCR 133; [2008] FCAFC 10 at [13]; Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21]; Hoe v Manningham City Council [2011] VSC 37 at [3]–[4]; Smalley v Secretary, Department of Health and Ageing [2011] FCA 302 at [10]ff; Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22]) (“Ferella”). As Leeming JA said in Ferella at [6]:
“Obviously, it is not possible, merely by the device of asking whether the Tribunal erred in law in doing something or failing to do something, to circumvent the statutory limitation on the scope of the appeal.”
[4] More recently, in Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [32], I said, with the agreement of Meagher JA and Griffiths AJA:
As has been said on a large number of occasions, it is not sufficient merely to assert that the Tribunal erred in law in order to satisfy the limited conferral of jurisdiction. Authorities to that effect are collected in Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13], as well as in Ferella at [6] and [22] to which the Appeal Panel referred. More recently, it was said in Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 at [21] by me, with the agreement of Bell P and White JA, that “[a]n appellant cannot convert a challenge which is wholly or partly factual to one which is on a ‘point of law’ merely by including those words in the formulation of a ground”.
…
[7] The criticism of the legal practitioners involved in drafting a notice of appeal raising a question of law has not come without advance warning. In Medical Council of New South Wales v Mooney [2024] NSWCA 180 at [97] this Court said:
These points have been made, repeatedly, by this Court in relation to various regimes where appeals are confined to questions of law: see Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22] (“necessary for the notice of appeal to identify precisely the particular question or questions of law”); Kudrynski v Orange City Council [2024] NSWCA 33 at [48] (“it is critical that an appellant clearly identify the question of law which is the subject of the appeal”); Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13] (“the respondent did not identify the questions of law that were the subject matter of the appeal, but rather asserted the magistrate erred in law in various ways. This was wrong”). Many other examples could readily be collected. A more general, but equally salient, point was made in Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 at [30]: “The first matter for legal practitioners advising potential appellants to this Court is to consider whether there is a right of appeal – including considering whether or not leave to appeal is required – and, if so, what sort of right that is”. As noted at the outset of these reasons, where sophisticated litigants, such as the Medical Council, ignore the strictures upon the nature of the appeal they seek to invoke, they and the lawyers retained by them should expect criticism. They also run this risk, in an appropriate case, of adverse orders.
[8] Twelve years of warnings should be enough…”
“[131] In dealing with the appeal grounds and submissions, the Appeal Panel is not required to engage with every argument or issue raised if the arguments are repetitive, overlapping, or irrelevant to the disposition of the appeal (Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 ( at [276] and [278]; Boensch Trust v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [7]-[8]).
[132] Prolixity of grounds of appeal and submission by a legally represented party are inconsistent with the just, quick and cheap resolution of the real issues in the appeal, and also obscures apparent merit: Stoltenberg v Bolton; Loder v Same (2020) 380 ALR 145; [2020] NSWCA 45; at [52]; Superannuation & Corporate Services Pty Ltd v Turner [2020] NSWCA 246 at [6]; H2O Exchange Pty Ltd v Innovation and Science Australia [2021] FCA 11 at [19]).
[133] The failure of a legally represented party to clearly articulate appeal grounds on errors on a question of law; and distinguish them from grounds requiring leave to appeal was discussed in Garofali v Moshkovich [2021] NSWCATAP 242 at [52]-[53] and [55] as follows:
“However, it is of no assistance to the Appeal Panel when a legally represented party cannot clearly identify and articulate what errors of law have purportedly occurred; nor clearly identify and articulate the distinction between purported errors of law (which do not require leave of the Tribunal) and errors other than errors of law to which leave to appeal is required.
This is not a new issue. The NSW Court of Appeal has been critical of practitioners who do not file and serve clearly articulated grounds of appeal and timely written submissions that engage with the grounds of appeal in Whyte v Broch (1998) 45 NSWLR 354 (‘Whyte’); Lorbergs v State of New South Wales (1999) NSWCA 54 and Lake Macquarie City Council v McKellar [2002] NSWCA 90 at [88]-[94]. In Whyte, Spigelman CJ referred to a pervasive “climate of complacency” regarding the failure of practitioners to file and serve timely outlines of submissions that engage with clearly articulated grounds of appeal.
…
However, all legally represented parties who appear in the Appeal Panel should, as a minimum standard, be able to clearly identify and articulate what are the purported errors of law or errors that require leave to appeal rather than merely provide a narrative as to why their client disagrees with the decision.”
The appeal submissions of both parties approach this appeal in an unorthodox and unhelpful way.
The artificial manner in which the parties have directed their submissions can be expressed this way. The lot owner’s purported errors on a question of law are framed on the artifice that Titterton SM determined the issue of costs in circumstances where the lot owner had succeeded on the s 150 SSMA application. He clearly did not, and could not, because the Senior Member decided the lot owner had failed on the s 150 SSMA application. The lot owner’s success on the s 150 SSMA application occurred subsequently, by way of the decision in Shah-Appeal Panel, which then, retrospectively, substituted the lot owner’s success under s 150 of the SSMA into the Tribunal’s decision by operation of s 81(1)(d) of the NCAT Act.
The owners corporation’s submissions are framed on the basis that we should disregard, or understate, the outcome in Shah-Appeal Panel because it was “not material” to the costs decision under appeal because it arose subsequently. If we were to accept that submission, we would disregard the operation of s 81(1)(d) of the NCAT Act and its practical effect in the circumstances of this matter on the outcome of the Tribunal proceedings.
In substance, the lot owner submits that it would not be fair and equitable for the costs decision to stand when it was determined on a basis that been superseded by the 2025 Appeal Panel decision. That is, quintessentially, a submission that goes to whether an error of a type has occurred that satisfies the principles for leave to appeal.
The owners corporation submits that the lot owner has not established an error on a question of law. However, in our view, the critical issue is whether leave to appeal should be granted. We do not accept the submission of the owners corporation that the decision of the Appeal Panel in Shah-Appeal Panel on the issue of s 150 of the SSMA is not material to the costs decision of the Tribunal under appeal.
We do not accept the submission that it is inevitable the costs decision would have been the same. The lot owner sought, in substance, two different orders that involved different issues. Whether special by-law 19 was declared invalid because it was harsh, unconscionable or oppressive under s 150 of the SSMA is entirely different to whether the lot owner’s proposed common property rights by-law was unreasonably refused under s 149 of the SSMA, including the issue of prior written consent by the lot owner under s 143(1) of the SSMA.
We do not accept the submission of the owners corporation that the lot owner’s s 149 application was the paramount issue and the s 150 SSMA application was a minimal part of the hearing. We accept that the Primary Decision spends considerable time on the s 149 SSMA issue (including repeating slabs of the written submissions of the parties) and a substantial part of the parties’ evidence was directed to the history of the lot renovation proposal. However, the s 150 SSMA application is dealt with at [115]-[133] of the reasons in the Primary Decision. It was not a minor issue. It was an important issue that involved consideration by the Tribunal. It was also the issue upon which the lot owner succeeded in her 2025 appeal to the Appeal Panel.
The submission of the owners corporation that the Appeal Panel decision was not part of the costs decision of the Tribunal is artificial, and is rejected. It must be relevant to the costs decision from the Primary Decision because it fundamentally changed the Primary Decision by substituting a different outcome in respect of the s 150 SSMA application.
We are satisfied that, by reason of the subsequent decision in Shah-Appeal Panel which retrospectively substituted orders under s 81(1)(d) of the NCAT Act that the lot owner succeeded on the s 150 SSMA claim, leave to appeal should be granted.
There are two bases for leave being granted in the context of cl 12(1) of sch 4 of the NCAT Act. Firstly, there is significant new evidence that was not reasonably available at the date Titterton SM dealt with the issue of costs, being evidence of the decision in Shah-Appeal Panel (Hawkins v NSW Land and Housing Corporation [2026] NSWCATAP 121 at [80]-[87]). However, even if Shah-Appeal Panel was not significant new evidence that was not reasonably available, the decision in Shah-Appeal Panel and the orders made under s 81(1)(d) of the NCAT Act mean that the Tribunal Costs Decision cannot have been fair and equitable. The Tribunal determined the issue of costs from the Primary Decision on the basis of findings under s 150 of the SSMA that the Appeal Panel subsequently found to be legally wrong.
We are satisfied that the lot owner may have suffered a substantial miscarriage of justice in accordance with the principles in Collins v Urban.
We are also satisfied that the discretion to grant leave to appeal has been established. If the Tribunal’s costs decision were to remain undisturbed, the lot owner would suffer an injustice that is clear and readily apparent and goes beyond being merely arguable. We acknowledge that leave to appeal is not granted lightly from costs decisions that involve discretionary considerations. This is a matter that warrants leave to appeal being granted.
As we have decided to grant leave to appeal, error on a question of law can be dealt with briefly. If we were to approach the disposition of the appeal on the artificial basis that Titterton SM had decided the s 150 SSMA application succeeded, rather than on the correct basis that he did not, but Shah-Appeal Panel superseded his decision, a wrong principle of law would have been established. The “relevant considerations” and “irrelevant considerations” grounds would not have been established.
Failing to take into account a matter is only an error of law if a statute (explicitly or implicitly) prescribes that it is a mandatory consideration that must be taken into account; and “irrelevant considerations” are matters which are not only ‘not mandatory’ but which are in fact prohibited from being considered, having regard to the subject matter, scope or purpose of the power (Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180 at [8]-[9] per Basten JA with whom Beasley P agreed, referring to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39;[1986] HCA 40). None of the matters raised by the lot owner fall into these categories. Nor is the decision so unreasonable that no decision maker could have made it (Selkirk v The Owners-Strata Plan No 2661; The Owners-Strata Plan No 2661 v Selkirk [2026] NSWCATAP 211 at [227]-[229] and the authorities cited therein).
We do not regard it as appropriate to remit the costs decision from the Primary Decision back to the Tribunal for redetermination according to law.
This is a costs dispute. The parties will incur significantly more costs if the matter is remitted back to the Tribunal. We are satisfied that the documents and submissions provided by the parties in the appeal (including materials relied upon in the costs application to the Tribunal) are sufficient for us to determine the issue of costs in a procedurally fair manner and substitute our decision for that of the Tribunal under s 81(1)(d) of the NCAT Act. That is the course that the Appeal Panel took in BCA Construction Pty Ltd v Ar**sovski [2024] NSWCATAP 31; and Prestige Homez Pty Ltd v G**hag [2025] NSWCATAP 93.
The lot owner submits that each party should bear its own costs because of the mixed success of the parties on the ss 149 and 150 SSMA applications. Even if the lot owner sought to establish that “special circumstances” existed sufficient to cause the exercise of discretion to depart from the principle in s 60(1) of the NCAT Act, we would not be satisfied that the owners corporation should pay the lot owners costs in circumstances where the lot owner failed on the s 149 SSMA application.
It is the owners corporation who seeks a costs order against the lot owner.
Rule 38 of the NCAT Rules does not apply to the Tribunal proceedings as the amount claimed or in dispute in the proceedings did not exceed $30,000 (Athens v The Owners-Strata Plan No 47035 (No 2) [2026] NSWCATAP 233).
The salient issue is whether the owners corporation has established under ss 60(2)-(3) of the NCAT Act that a costs order should be made in its favour.
Section 60 of the NCAT Act 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.
…
“[31] The usual rule is that a party is to pay their own costs of proceedings but, as the legislation makes clear, the Tribunal may make an order for costs if satisfied that there are “special circumstances”: s 60(2) NCAT Act.
[32] Six leading principles are apposite.
[33] First, special circumstances are circumstances that are out of the ordinary. It is not necessary to establish extraordinary or exceptional circumstances: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11] quoting Cripps v G&M Dawson Pty Ltd [2006] NSWCA 81 per Santow JA at [60]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32].
[34] Secondly, the onus is on the party seeking an order for costs to satisfy the Tribunal that there are special circumstances warranting an award of costs in its favour: see McEwan v Port Stephens Council (No 2) [2022] NSWCATAP 386 at [38].
[35] Thirdly, the Tribunal is to consider whether the circumstances are sufficient to amount to special circumstances that justify departing from the general rule that each party bear its own costs: BPU v NSW Trustee and Guardian (Costs) [2016] NSWCATAP 87 at [9]. The mere existence of one of the enumerated factors in s 60 of the NCAT Act will not of itself be sufficient to warrant the conclusion that there are special circumstances.
[36] Fourthly, each case will depend on its own particular facts and circumstances: Brunsprop Pty Ltd v Joanne Hay and Wes Davies [2015] NSWCATAP 152 at [27].
[37] Fifthly, mere success (or failure) of an application does not give rise to special circumstances: The Owners – Strata Plan 5319 v Price [2020] NSWCATAP 245 at [46].
[38] Sixthly, 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: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48].
[39] Overall, what is required is for the Tribunal to exercise its discretion in a manner which is fair and reasonable having regard to the particular circumstances of a particular case.
[40] The decision to award costs pursuant to s 60(2) of the NCAT Act involves, in effect, two decisions. The first is the Tribunal’s satisfaction that there are special circumstances warranting an award of costs. The satisfaction involves a degree of subjectivity and thus, in a broad sense, may be described as a discretionary decision (as described in respect of similar legislative provisions in a different statutory context in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [20] per Gleeson CJ, Gaudron and Hayne JJ). If the Tribunal has regard to any matters as set out in s 60(3) of the NCAT Act, the matters must be given due weight.
[41] As s 60(2) of the NCAT Act makes clear, if the requisite satisfaction is reached, the Tribunal “may” make the order. Satisfaction as to the existence of special circumstances merely enlivens the discretion to award costs rather than mandating an award of costs: Al-Aaraj v Commissioner of Police, NSW Police Force (No 2) [2025] NSWCATAP 166 at [40]; Brodyn Pty Ltd v Owners Corporation - Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [32]. This necessitates the making of a second decision (which we term the overall discretion) as to whether in all the circumstances, an award for costs should be made.”
It is not established the lot owner conducted the Tribunal proceedings in a manner that disadvantaged the owners corporation. There is reference in the owners corporation’s submissions to representations made by the lot owner or a person acting on her behalf that if the owners cooperation passed the special by-law authorising lot renovations at the EGM on 18 May 2024 then the lot owner would withdraw the Tribunal proceedings. That issue will be considered later in the reasons. Otherwise, there is nothing to indicate non-compliance with procedural directions or other matters that would constitute conducting proceedings in a manner that causes unnecessary disadvantage.
The lot owner relied upon a large amount of documentary material in respect of the s 149 SSMA application, and why that application was pressed in circumstances where the lot owner had a revised common property rights by-law passed in May 2024 is troubling. However, the owners corporation was able to make submissions on those issues, and the lot owner had a separate application under s 150 of the SSMA, which was ultimately successful.
At [139] of the Tribunal Primary Decision dated 10 March 2025, it is stated that the evidence of the owners corporation was that no written consent had been provided by the lot owner pursuant to s 143(1) of the SSMA prior to the EGM on 24 January 2024, and the lot owner did not dispute that. However, at [152] the Tribunal stated that the lot owner submitted that “she had provided written consent on 16 October 2023 and on 28 November 2023. At [154]-[163] the Tribunal found that the written consents of the lot owner did not comply with s 143(1) of the SSMA.
We point out that the issue of whether “written consent” was provided by the lot owner to her own proposed common property rights by-law prior to the EGM on 24 January 2024 is more complex than is captured by the submissions of the owners corporation.
Section 143(1) of the SSMA states:
143 Requirements and effect of common property rights by-laws
(1) An owners corporation may make a common property rights by-law only with the written consent of each owner on whom the by-law confers rights or privileges.
Note: Any addition to the by-laws will require a special resolution (see section 141).
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“[93] When a lot owner gives consent under s 52, the lot owner is not giving that consent as an organ of the owners corporation. Rather, the lot owner is giving that consent in a personal capacity. The requirement of consent is necessary because that owner’s personal rights will be affected by the by-law. Under s 162 of the SSM Act, Mr Anderson is given the powers of the owners corporation, the executive committee and office bearers of the executive committee. He is not given any of the powers given to an individual lot owner under the Act. Consequently, his purported consent on behalf of individual lot owners is ineffective.
[94] Section 52 of the SSM Act provides that the owners corporation may “make” a by-law under that section “but only” with the written consent of the owner or owners of the lot or lots concerned. The by-law is made by the owners corporation, but a pre-condition to making the by-law is the required consent. In my opinion, the owners corporation “makes” a by-law when it passes a valid resolution adopting the by-law in accordance with the relevant requirements of the SSM Act. That conclusion is supported by s 52(3) which provides for a conclusive presumption that “all conditions and preliminary steps precedent to the making of the by-law” were complied with after two years. Section 52(3) draws a distinction between the making of the by-law and the conditions and preliminary steps precedent to the making of the by-law. The use of the words “preliminary” and “precedent” indicate that those steps are steps to be taken before the making of the by-law. One such step must be the obtaining of written consent. Section 52(3) is saying (among other things) that that condition or preliminary step precedent is conclusively presumed to have taken place if no challenge is made to the by-law within two years.
[95] In my opinion, there is also a practical reason for interpreting s 52 as requiring written consent before a resolution is passed. That reason is that lot owners may well want to know whether written consent is forthcoming before voting on the resolution. The powers conferred by s 52 cannot operate any differently because they are being exercised by Mr Anderson under s 162 rather than by the owners corporation.”
The wording of s 52(1) of the predecessor SSMA is slightly different to s 143(1) of the SSMA, with the predecessor legislation involving written consent of the lot owner “concerned”, and s 143(1) of the SSMA referring to written consent of a lot owner “on whom the by-law confers rights or privileges”. However, Ball J does not opine upon what is required for a lot owner to give written consent to the making of a common property rights by-law that is put forward by that lot owner to a meeting of the owners corporation.
Further Ball J does not opine on the form in which written consent is to be contained or conveyed. For example, in Williams v The Owners – Strata Plan No 3192 [2018] NSWCATCD 77 the Tribunal found that a letter from the lot owner’s solicitor was sufficient, observing (at [30]:.
“[30] In my view, the relevant question is whether the communication from the applicants’ solicitors was sufficient for the purposes of ss 143 (1) and 108(5). In my view, the writing of the letter of 21 September 2018 does constitute the written consent of the applicants. The purpose of the two sections is to ensure that no Special By-Law imposes obligations on lot owners affecting common property rights without their knowledge or consent. I am satisfied that the writing of the letter by the solicitors of the applicants sufficiently satisfied both s 143 (1) and s 108(5).”
A number of decisions that have referred to James (No 4) (e.g. Khad**ivzad v The Owners-Strata Plan No 53457 [2019] NSWSC 157; GS & CS Holdings Pty Ltd v The Owners-Strata Plan No 63227 [2022] NSWCATAP 206; Van der Ri**jt v Collins [2024] NSWCATAP 247; and Lane v The Owners-Strata Plan No 2404 [2026] NSWCATAP 73 do not definitively resolve what is sufficient to constitute written consent for the purpose of s 143(1) of the SSMA. It remains a question of fact in the circumstances of the particular matter.
Although the lot owner failed on the issue under s 143(1) of the SSMA, which led to the dismissal of the s 149 application in respect of the EGM on 24 January 2024, the owners corporation has failed to establish the s 149 SSMA application had no tenable basis in fact or law. We accept that, on the s 149 SSMA application, the owners corporation had a much stronger case, particularly in circumstances where a revised common property rights by-law was passed at the EGM on 18 May 2024 and alteration works had been performed after 18 May 2024.
However, on the s 150 SSMA application, the lot owner had a stronger case, as demonstrated by the Appeal Panel allowing the appeal in Shah-Appeal Panel; declaring special by-law 19 harsh, unconscionable or oppressive; and substituting its decision under s 81(1)(d) of the NCAT Act.
We note the Tribunal found that the proceedings were “sufficiently” complex ([50]). The Tribunal referred to having to make “very detailed findings;” that the lot owner had relied on a 633 bundle of documents; the owners corporation had relied upon 59 pages; there had been extensive written and oral submissions; and “the legal issues raised”.
In the Primary Decision, the Tribunal had set out the documents, submissions and evidence of the parties (at [5]-[33]). The lot owner’s evidence in chief was documentary evidence involving the proposed renovation; correspondence; medical evidence; and evidence regarding her financial situation. The respondent’s documentary evidence was contained in a 59 page bundle that involved 2 statements of strata committee members and a statement of the strata manager. The lot owner attempted to rely on a 59 bundle of evidence purportedly in reply, which contained witness statements and some expert evidence. Some of the reply evidence was not admitted ([25]). One strata committee member was briefly cross examined. The lot owner’s husband was briefly cross examined. The lot owner was cross examined.
We accept that it was open to the Tribunal to find (at [50]) that the proceedings were of out of the ordinary legal and factual complexity. However, substituting our decision under s 81(1)(d) of the NCAT Act involves us adopting our own assessment based on the materials before us in the appeal.
We are satisfied that, by reason of the volume of documents the lot owner relied upon in the s 149 SSMA application, this aspect of the lot owner’s claim was out of the ordinary, in circumstances where the lot owner had a revised common property rights by-law approved by the owners corporation in May 2024 and had conducted works arising from that common property rights by-law. However, the s 150 SSMA application did not involve any considerable documentary material. That aspect of the proceedings was mainly confined to legal argument.
Proceedings may be frivolous if they have little or no value or importance. Proceedings may be vexatious if they are instituted with the intention of annoying or embarrassing the person against who they are brought; or brought for a collateral purpose and not for the purpose of a court or Tribunal adjudicating on the issues to which they give rise; or are so obviously untenable or manifestly groundless as to be utterly hopeless. Proceedings may be misconceived if they misunderstand legal principle. Proceedings may lack substance if encompass untenable propositions of fact and law (BDK v Department of Education and Communities [2015] NSWCATAP 129 at [62]-[66], in respect of “frivolous, vexatious, misconceived and lacking in substance”).
We are not satisfied the Tribunal proceedings were frivolous, vexatious, or otherwise misconceived or lacking in substance. Again, by way of the decision in Shah-Appeal Panel, the lot owner succeeded on the s 150 SSMA application. In circumstances where there was a factual dispute as to whether s 143(1) of the SSMA had been complied with, we are not satisfied that the s 149 SSMA application was frivolous, vexatious, or otherwise misconceived or lacking in substance in the particular circumstances of these proceedings. The costs submissions of the owners corporation and the reasons of the Tribunal in the Primary Decision do not indicate the owners corporation was clearly arguing the s 149 SSMA application in respect of the 23 January 2024 EGM was misconceived and without substance due to the passing of the revised common property rights by-law in May 2024. Rather, the focus of the owners corporation’s submissions was in respect of s 143(1) of the SSMA, and the asserted deficiencies in the proposed common property rights by-law and the documentary material the lot owner had put before the EGM on 23 January 2024.
When the proceedings are considered in their totality, the owners corporation has failed to establish they were frivolous, vexatious, otherwise misconceived or lacking in substance.
There are two matters the owners corporation raises as relevant to the exercises of the costs discretion.
The first is a letter from the owners corporation’s Solicitors to the lot owner’s Solicitors dated 24 July 2024. The second is representations by Mr Soussa, a real estate agent who the Tribunal in the Primary Decision found was “authorised” by the lot owner to speak to the strata committee of the owners corporation on her behalf, on 2 May 2024 and 7 May 2024.
The letter of 24 July 2024 is not expressed in “Calderbank” terms. It does not invite the lot owner to withdraw the proceedings under s 55(1)(a) of the NCAT Act within a certain time frame without costs being sought or be faced with an application for costs.
The letter states at [1]-[4] that the lot owner’s s 149 SSMA application is doomed to fail because the owners corporation asserts no prior written consent to the making of the common property rights by-law was provided by the lot owner before the EGM on 24 January 2024, and cites James v The Owners-Strata Plan No SP 11478 (No 4) [2012] NSWSC 590.
At [6] the letter states that, additionally, there were “fundamental problems” with the lot owner’s case. Those problems are identified as the special by-law refused at the EGM on 24 January 2024 not identifying who is responsible for the maintenance and repairs of the alterations; deficiencies in the materials put before the meeting by the lot owner (including lack of an adequate plan and an acoustic report) and the effect on the amenity of the lot owner and occupant below if a bathroom was constructed above their bedroom. The letter cites The Owners-Strata Plan No 691**40 v Drewe [2017] NSWSC 815 as authority for the proposition the lot owner will not be able to prove the owners corporation unreasonably refused to pass the proposed common property rights by-law at the meeting on 24 January 2024.
At [7] the letter states that “an important issue” was that the lot owner “clearly stated in writing more than once (including through Mr Soussa on 2 May 2024)” that “upon successful EGM resolution of the proposed plan” the lot owner was “willing to withdraw” the NCAT proceedings. The letter states the lot owner “has breached that clear undertaking.”
The letter concludes at [8]:
“The Respondent reserves the right to:
(a) Tender this letter in its evidence; and
(b) Rely on this letter in seeking both a costs order and, and indemnity costs (especially noting paragraphs 5 and 7 above)”.
The letter makes no mention of the s 150 SSMA application, nor any argument that the s 149 SSM Act proceedings lacked utility because a revised common property rights by-law had been passed in May 2024.
The “undertaking” that the owners corporation refers to, and the evidence and submission of the parties on that issue, is referred to in the Primary Decision at [77]-[79] and [51]-[57] of the Costs Decision.
The evidence of the “undertakings” was Mr Soussa writing to a strata committee member on 2 May 2024 that relevantly stated, “Upon successful EGM resolution of the proposed plan, the lot owners are willing to withdraw their claim currently before NCAT”. The correspondence of 7 May 2024 relevantly states “…they intend to retract the NCAT claim once the motion is approved”.
We are not satisfied that the “rejection” of the letter of 24 July 2024 is “special circumstances”. That letter contained no offer. It was simply a letter that formally put the lot owner on notice of the respondent’s position that the s 149 SSMA proceedings in respect of the special by-law that was not passed at the EGM on 24 January 2024 was going to fail and that the lot owner had breached an “undertaking” to withdraw the proceedings. The letter did not invite the lot owner to withdraw the proceedings within a specific period of time. It made no compromise from the perspective of the owners corporation, and contains no specific reference to the s 150 SSMA proceedings.
In respect of the “undertakings” to withdraw proceedings, the position of the lot owner was set out at [54] of the Tribunal Costs Decision. Her argument was there was no binding agreement to withdraw, in circumstances where there was no agreement on costs or the validity of special by-law 19, and it was “speculation” as to whether the purported undertaking affected the voting at the EGM on 18 May 2024. The lot owner did not dispute Mr Soussa was representing her in negotiations with the owners corporation at the relevant time. The owners corporation submitted there was an “undertaking” and the lot owner continuing with the proceedings was the equivalent to “disentitling conduct.”
In respect of the correspondence from Mr Soussa on 2 and 7 May 2024, we accept that it is out of the ordinary to state that proceedings will be withdrawn if a common property rights by-law is passed, and then not withdraw the proceedings upon the passing and registering of the common property by-law. The representation does not have to satisfy the legal test of a binding agreement. However, a number of matters are relevant. Firstly, the correspondence from Mr Soussa is ambiguous. The correspondence of 2 May 2024 states the lot owner is “willing to withdraw their claim”. “Willing” does not indicate a definitive position, and it is not clear whether “the claim” means the s 149 SSMA claim only, or both the ss 149 and 150 claims. The correspondence of 7 May 2024 is more definitive, but there is still ambiguity in the phrase “the claim” and whether it encompasses the s 150 SSMA claim.
We accept that there was a representation on 7 May 2024 that the s 149 SSMA claim may be withdrawn if the common property rights by-law passed on 18 May 2024. However, we are not satisfied that there was a representation that the entire proceedings would be withdrawn. We do not regard that conduct is “disentitling conduct” of such a nature that, of itself, it should cause the lot owner to pay the owners corporation’s costs of the proceedings from 18 May 2024 onwards.
As discussed previously, it is not enough that the owners corporation establish one or more matters under s 60(3) of the NCAT Act that are “special circumstances” in the sense of being unusual or out of the ordinary. The owners corporation needs to establish that those special circumstances are sufficient to cause us to exercise our discretion to depart from the usual principle that each party bears its own costs under s 60(1) of the NCAT Act.
We accept that some special circumstances have been established in respect of the s 149 SSMA aspect of the proceedings, by reason of the amount of documents and submissions relied upon by the lot owner; the relative weakness of the lot owner’s case in respect of the s 149 SSMA application; and the representations made by Mr Soussa.
However, that needs to be weighed against the success of the lot owner (by reason of Shah-Appeal Panel) on having special by-law 19 declared harsh, unconscionable or oppressive under s 150 of the SSMA. The outcome is mixed success of both parties, and the s 150 SSMA aspect of the proceedings was not minor or insignificant.
Having weighed and considered the matters under s 60(3) of the NCAT Act, we are not satisfied that the special circumstances established by the owners corporation are sufficient to cause us to exercise our discretion to depart from the principle under s 60(1) of the NCAT Act that each party bears its own costs.
In circumstances where the owners corporation has failed to establish special circumstances sufficient for us to exercise our discretion to depart from the usual principle under s 60(1) of the NCAT Act, the issue of “proportionate costs orders” does not arise. A court may deprive a party who is, overall, the successful party in the proceedings, of its costs in respect of issues or claims upon which it was unsuccessful if that issue or claim was clearly dominant or separable (Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]). In this matter, the lot owner does not obtain any costs order in her favour in any event. We are also not satisfied that the owners corporation has established that it is appropriate to split up consideration of the respective ss 149 and 150 claims such that a costs order is made in favour of the owners corporation in respect of the s 149 SSM claim. As discussed previously, we are not satisfied that the owners corporation has established that the special circumstances are sufficient to cause us to exercise our discretion to depart from the usual costs principle in s 60(1) of the NCAT Act.
We set aside the costs orders of the Tribunal dated 24 June 2025 and substitute our decision under s 81(1)(d) of the NCAT Act that there is no order as to costs, with each party to bear its own costs.
By reason of the procedural order and direction of Blake PM referred to previously, both parties should have provided detailed written submissions on the issue of costs of the appeal.
We are satisfied that it is appropriate to determine the issue of costs of the appeal in this decision, rather than unnecessarily bifurcating determination of costs into a different decision.
In circumstances where the owners corporation was the unsuccessful party in the appeal, we are not satisfied that it should have a costs order in its favour. No special circumstances exist sufficient to cause the Appeal Panel to exercise its discretion to order the lot owner pay the owners corporation’s costs of the appeal in circumstances where the owners corporation unsuccessfully opposed the appeal.
In respect of the lot owner, we are not satisfied that special circumstances exist sufficient to cause us to exercise our discretion to depart from s 60(1) of the NCAT Act. The fact that the lot owner was successful in the appeal is not a special circumstance. We do not accept that the grounds of appeal of the lot owner were so strong or compelling that special circumstances are established. In that regard, we note that the lot owner framed most of its grounds and arguments on the basis of error on a question of law. We have set out previously the salient issue was, in our view, whether leave to appeal should be granted. There are no other matters under s 60(3) of the NCAT Act that are sufficient to constitute special circumstances, let alone special circumstances sufficient to cause a costs order to be made in favour of the lot owner in the appeal proceedings.
It follows that there is no order as to the costs of the appeal, with each party to bear its own costs.
We will give the parties an opportunity to make an application to vary that order. Any such application must be made by the lodging and serving of a miscellaneous matters application by 14 days from the date of this decision. However, any application to vary must be based upon a circumstance that could not have appropriately been dealt with in appeal submissions, such as a Calderbank offer in the appeal proceedings. Any application to vary that is simply a re-agitation of matters that should have been dealt with in the appeal submissions may be dismissed, and there may be costs consequences if this occurs.
104 Restrictions on payment of expenses incurred in Tribunal proceedings
(1) An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings.
(2) An owners corporation that is unsuccessful in proceedings brought by or against it for an order by the Tribunal cannot pay any part of its costs and expenses in the proceedings from its administrative fund or capital works fund, but may make a levy for the purpose.
(3) In this section, a reference to proceedings includes a reference to proceedings on appeal from the Tribunal.
“[105] For strata schemes, there are special legislative provisions which govern recovery of OC costs and expenses in respect of proceedings, as relevantly determined by the Appeal Panel in Owners SP 74698 v Jacinta Investments PL [2021] NSWCATAP 387 at [180]-[208].
[106] First, SSMA s 232 supports the making of an order quarantining lot owners against contributions (from the existing funds of an owners corporation or from levies) to pay damages and costs orders against the owners corporation in favour of the lot owners.
[107] Secondly, SSMA s 104 operates of its own force, without need for orders, to quarantine successful lot owners from contributing (from the existing funds of an owners corporation or from levies) to the owners corporation’s costs and expenses in the proceedings.
[108] Thirdly, it is appropriate, if there is a separate determination on costs and expenses in the proceedings, to reserve for that determination any dispute as to the operation of SSMA s 104 in terms of whether the lot owner is successful in the proceedings and the owners corporation unsuccessful in the proceedings, even if that appears reasonably clear. Since SSMA s 104 operates as a statutory obligation without need for an order once the lot owner is established as the successful party, a notation of that statutory force is sufficient without further order.
[109] What is not the subject of such quarantining is expenditure from existing funds or from levies to fund remedial work to common property.
[110] Disputes about aspects of those issues more properly will be the subject of fresh proceedings in the Tribunal rather than orders in the appeal: Owners SP 70871 v Turek [2022] NSWCATAP 83 at [29]-[30].”
1. The costs application is dismissed.
2. No order as to costs, with each party to bear its own costs in accordance with s 60(1) of the Civil and Administrative Tribunal Act 2013 (NSW).
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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. Registrar
Shah
The Owners-Strata Plan No 7655
[2026] NSWCATAP 233
[2026] NSWCATAP 133
[2026] NSWCATAP 211
[2000] HCA 47
(2013) 85 NSWLR 86
(1986) 162 CLR 24
(2017) 95 NSWLR 597
(1988) 82 ALR 175
(2008) 74 NSWLR 481
(2008) 165 FCR 133
(2010) 241 CLR 320
(2022) 109 NSWLR 468
(2019) 268 CLR 593
(2020) 380 ALR 145
(1998) 45 NSWLR 354
(2000) 203 CLR 194