Shahbazian v Owners Corporation SP 56466

NCAT Consumer and Commercial|2017-08-28|Before: Wright J

Solicitors: Jane Crittenden Lawyer (Respondent) File Number(s): SC 17/16341

Effect of this decision

This decision establishes that orders of Strata Scheme Adjudicators made, by virtue of cl 7 of Sch 3 to the Strata Schemes Management Act 2015 (NSW) (the 2015 Act), after the repeal of the Strata Schemes Management Act 1996 (NSW) (the 1996 Act), can generally be enforced under the 1996 Act, as if that Act had not been repealed.

Introduction

The applicant in proceedings SC 17/16341, Mr Shahbazian, is a lot owner in Strata Plan 56466. The respondent is the Owners Corporation for that Plan.

Background to the Question

On 14 September 2016, Mr Shahbazian made an application in proceedings SCS 16/41205 for orders concerning repairs to his lot by the Owners Corporation (the original application). He sought those orders under ss 138 and 140 of the 1996 Act from a Strata Scheme Adjudicator.
On 30 November 2016, the 1996 Act was repealed by s 275 of the 2015 Act.
An Adjudicator heard and determined Mr Shabazian's application under the 1996 Act, as permitted by cl 7 of Sch 3 to the 2015 Act. On 8 December 2016, the Adjudicator made orders as follows: "1. Within three months of the date of these orders the respondent [the Owners Corporation] shall arrange for appropriately qualified tradespersons to carry out the following works in a proper and workmanlike manner: (a) Repair or replace, and repaint, the rotting barge/tie joint at the front of lot 12; and (b) Repair or replace the lot 12 external garage door and door frame. 2. The application is otherwise dismissed."
It should be noted that an order of an adjudicator under the 1996 Act was not an order of NCAT (or prior to the creation of NCAT, an order of the CTTT), Wrigley v Owners Corporation SP 53413 [2017] NSWCATAP 100 at [9] and Moallem v Consumer Trader and Tenancy Tribunal [2013] NSWSC 1700 at [57] to [60].
On 7 April 2017, Mr Shahbazian lodged with the Tribunal an application in proceedings SC 17/16341 seeking enforcement of the Adjudicator's 8 December 2016 orders. The orders sought in that application were: "Order 1) Owners Corporation SP56466 immediately comply with order 1(b) of NCAT [sic] Orders SCS 16/41205 of 9/12/2016 issued by Adjudicator D Ziegler. Order 2) That the Owners Corporation SP56366 be issued with a Penalty notice for non-compliance with NCAT [sic] Orders SCS 16/41205 of 9/12/2016 issued by Adjudicator D Ziegler. We asked that the maximum penalty be applied, and that it be recurring."
There is no provision in the 1996 Act or the 2015 Act expressly empowering the Tribunal to make an order in terms of order 1. As to order 2, the Tribunal had power to order a civil pecuniary penalty for non-compliance with an adjudicator's order, under s 202 of the 1996 Act. There is, however, no provision corresponding to s 202 in the 2015 Act. Nor, after the repeal of the 1996 Act, is there any other Act which permits a civil penalty to be imposed for non-compliance with an adjudicator's order, as opposed to an order of the Tribunal.
The difficulty for Mr Shahbazian was that the 1996 Act was repealed on 30 November 2016. His enforcement proceedings, SC 17/16341, had not been commenced at that time. Consequently, Mr Shahbazian could not rely on the savings provision that concerns proceedings commenced but not determined or finalised under the 1996 Act, cl 7 of Sch 3 to the 2015 Act, in respect of those enforcement proceedings. Further, the 2015 Act did not provide any mechanism for the enforcement of adjudicators' orders made under, but after the repeal of, the 1996 Act.

Relevant legislative provisions

The Appeal Panel outlined some of the relevant aspects of the operation of the 1996 Act, prior to its repeal, the 2015 Act and the Interpretation Act 1987 (NSW) in Wrigley v Owners Corporation SP 53413 [2017] NSWCATAP 100 at [8] to [25]. That decision concerned whether a party affected by an adjudicator's order made under the 1996 Act could lodge an external appeal to NCAT under ss 177 and 181 of the 1996 Act even after that Act had been repealed. Some of what follows is taken from that decision.

The 1996 Act and the original decision

Chapter 3 of the 1996 Act set out the responsibilities of an Owners Corporation for a strata scheme. Part 2 of Ch 3 (ss 62 - 65C) dealt with, among other things, the duties of an Owners Corporation to maintain and repair the common property. Relevantly, the Adjudicator found that the Owners Corporation had failed to repair and maintain the garage door and door frame of lot 12 as required by s 62.
The resolution of disputes and the making of orders concerning the operation and management of strata schemes was the subject of Ch 5 (ss 123 - 210) of the 1996 Act. Two bodies could make orders or decisions under Ch 5: 1. NCAT (or its predecessor, the CTTT, before 2014); and 2. a Strata Scheme Adjudicator, appointed under s 217 of the 1996 Act.
Part 4 of Ch 5 (ss 138 - 181) governed the orders that adjudicators could make. Sections 138 - 139 gave adjudicators general powers to settle disputes and rectify complaints. Relevantly, s 138 provided that: "138 General power of Adjudicator to make orders to settle disputes or rectify complaints (1) An Adjudicator may make an order to settle a dispute or complaint about: (a) an exercise of, or a failure to exercise, a function conferred or imposed by or under this Act or the by-laws in relation to a strata scheme, or (b) the operation, administration or management of a strata scheme under this Act."
In the present case, the Adjudicator dealt with Mr Shahbazian's original application under s 138 of the 1996, relying on cl 7 of Sch 3 to the 2015 Act, which is set out below.
Section 172 of the 1996 Act provided that an order of an adjudicator had legal force for a period of 2 years from the commencement of that order. "172 Duration of order by Adjudicator Except to the extent that the order otherwise provides, an order made by an Adjudicator under this Part (other than an interim order) ceases to have any force or effect on the expiration of the period of 2 years that commences on the making of the order."
Section 210 of the 1996 Act governed when decisions took effect. It provided: "210 Time at which order takes effect (1) An order takes effect when a copy of the order is served: (a) if the order requires a person to do or refrain from doing a specified act, on that person, or (b) in any other case, on the owners corporation for the strata scheme to which the order relates. (2) This section does not apply if express provision is otherwise made by this Act or in the order itself."
It was not in dispute that a copy of the order was served on the Owners Corporation on or shortly after 8 December 2016. Thus, the order took effect at that time and remained in force until 7 December 2018.

The 1996 Act and Mr Shahbazian's enforcement application

Enforcing orders of adjudicators and the Tribunal under the 1996 Act was dealt with in Pt 6 (ss 202 - 206). Section 202 permitted the Tribunal to require a person to pay a penalty for contravention of an order made under Ch 5 of that Act. Section 138 was found in Ch 5. Section 202 relevantly provided: "202 Civil penalties for contravention of orders under this Chapter (1) The Tribunal may, by order, require a person to pay a pecuniary penalty of an amount of up to 50 penalty units for contravention of an order under this Chapter (the original order). (2) An application for an order under subsection (1) may be made: (a) in any case, by the applicant for the original order, or …"
Prior to the repeal of the 1996 Act, a person in Mr Shahbazian's position, as an "applicant for the original order", could have lodged an application under s 202(1) for an order that the Tribunal require the Owners Corporation to pay a pecuniary penalty for allegedly contravening an adjudicator's order.

The 2015 Act and the repeal of the 1996 Act

The date of commencement for the relevant provisions of the 2015 Act was 30 November 2016. On that day, s 275 of the 2015 Act repealed the 1996 Act, including the provisions that established the position of Strata Scheme Adjudicator, empowered adjudicators to make orders and permitted applicants who had obtained those orders to enforce them by way of pecuniary penalties.
Schedule 3 to the 2015 Act contains savings and transitional provisions dealing with the effect of repealing the 1996 Act. The relevant provisions of Sch 3 include: "2 Definitions In this Part: … "former Act" means the Strata Schemes Management Act 1996. 3 General savings (1) Any act, matter or thing done or omitted to be done under a provision of the former Act and having any force or effect immediately before the commencement of a provision of this Act that replaces that provision is, on that commencement, taken to have been done or omitted to be done under the provision of this Act. (2) This clause does not apply: (a) to the extent that its application is inconsistent with any other provision of this Schedule or a provision of a regulation made under this Schedule, or (b) to the extent that its application would be inappropriate in a particular case. … 7 Existing proceedings Any proceedings commenced but not determined or finalised under a provision of the former Act are to be dealt with and determined as if the former Act had not been repealed. 8 Adjudicators (1) A person who held office as an Adjudicator under the former Act immediately before the commencement of this clause ceases to hold the office on a day appointed by the Secretary, being a day not earlier than the determination or finalisation of all proceedings referred to in clause 7. (2) (Repealed) (3) An Adjudicator who ceases to be an Adjudicator under this clause is not entitled to any compensation for loss of office. 9 Existing orders under former Act An order made by an Adjudicator or a Tribunal under the former Act, and in force immediately before the commencement of this clause, is taken to have been made by the Tribunal under the corresponding provision of this Act. …".
As has been noted above, the Adjudicator was able to hear and determine Mr Shahbazian's original application for orders under s 138 of the 1996 Act, by virtue of cl 7 of Sch 3 to the 2015 Act. This was because these original proceedings had been commenced but not determined or finalised when the 2015 Act came into effect and the 1996 Act was repealed.

The Interpretation Act

The Interpretation Act also contains, in s 30, general provisions relating to the enforcement of rights, obligations or liabilities accrued or incurred under repealed Acts. Section 30 relevantly provides: "30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not: … (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or … (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed. … (3) This section applies to the amendment or repeal of an Act or statutory rule in addition to, and without limiting the effect of, any provision of the Act or statutory rule by which the amendment or repeal is effected. ..."
The operation of s 30 is, however, limited by s 5(2) of the Interpretation Act which relevantly states: "(2) This Act applies to an Act … except in so far as the contrary intention appears in this Act or in the Act … concerned."

Mr Shahbazian's submissions

Mr Shahbazian, who was self-represented, submitted in substance that the repeal of the 1996 Act by the 2015 Act should not render unenforceable orders expressly permitted to be made under the 1996 Act after its repeal. If a person failed to comply with an order made under the 1996 Act, by virtue of the operation of the transitional provisions of the 2015 Act, that person should still be liable to a pecuniary penalty under s 202 of the 1996 Act. To the extent that s 30 of the Interpretation Act achieved such a result, Mr Shahbazian relied on that section.

Owners Corporation's submissions

Ms Crittenden, solicitor, who appeared for the Owners Corporation submitted that neither cl 7 nor cl 9 of Sch 3 to the 2015 Act applied in respect of Mr Shahbazian's enforcement application.
Although cl 7 applied to Mr Shahbazian's original s 138 proceedings, these proceedings were now determined and finalised within the meaning of cl 7, as explained in Wrigley v Owners Corporation SP 53413 [2017] NSWCATAP 100 at [94]. More specifically, the original proceedings were determined on 8 December 2016 and finalised when the right of external appeal expired.
As to Mr Shahbazian's enforcement proceedings, it was submitted that these did not fall within cl 7 because: 1. the proceedings were not instituted before the commencement of the 2015 Act; and 2. while appeal rights inhere in the first instance proceedings from their commencement, as explained in Wrigley at [81] to [83], enforcement rights do not inhere in proceedings in the same way.
The Owners Corporation also contended that cl 9 of Sch 3 did not apply to the order made by the Adjudicator on 8 December 2016 because, although it was made under the 1996 Act, it was not in force immediately before the commencement of that clause on 30 November 2016.
Accordingly, it was submitted that the transitional provisions in Sch 3 of the 2015 Act did not provide any means for Mr Shahbazian to enforce the orders of the Adjudicator of 8 December 2016.
Further, it was submitted that s 30 of the Interpretation Act did not assist Mr Shahbazian since: 1. there was no accrued right or obligation at the time the 1996 Act was repealed; and 2. all that he had, once the Adjudicator's order was made on 8 December 2016 was the right to seek a penalty order, being "a right of standing to apply". This was not relevantly an accrued right for the purposes of s 30(1)(c) of the Interpretation Act, as explained in Colley v Futurebrand FHA Pty Ltd (2005) 63 NSWLR 291 at [30].
Ms Crittenden accepted that, on her submissions, there would be a group of adjudicators' orders, made by virtue of cl 7 of Sch 3 to the 2015 Act after 30 November 2016, that could not be enforced.

Consideration

To resolve the question of whether the Tribunal has power to hear and determine the present application for a penalty under s 202 of the 1996 Act, the Tribunal has given consideration to the savings and transitional provisions in Sch 3 to the 2015 Act as well as s 30 of the Interpretation Act.

The savings and transition provisions in Sch 3 to the 2015 Act

In our view, the savings and transitional provisions in Sch 3 to the 2015 Act do not, by themselves, provide a basis for the Tribunal to hear and determine Mr Shahbazian's application based on s 202 of the 1996 Act. The relevant clauses are cll 3, 7 and 9. We shall deal with each in turn.
As to cl 3, the general savings provision in this clause is not applicable. The clause only applies to "[a]ny act, matter or thing done or omitted to be done under a provision of the [1996] Act and having any force or effect immediately before the commencement of a provision of [the 2015] Act that replaces that provision". Order 1(b) did not have force or effect immediately before the commencement of the 2015 Act on 30 November 2016. Order 1(b) was not made until 8 December 2016.
As to cl 7, that clause, among other things, preserves the ability of adjudicators to hear and determine proceedings commenced but not determined or finalised under the 1996 Act, as if that Act had not been repealed. The Appeal Panel considered the construction of this clause in Wrigley v Owners Corporation SP 53413 [2017] NSWCATAP 100 at [76] to [97] in relation to appeals from adjudicators' orders. We adopt what was said there so far as it is relevant in the present case. In particular we accept that: 1. "proceedings commenced … under a provision of the [1996] Act" refers to the process set in motion, or commenced, by lodging an application for an order under the 1996 Act either from an adjudicator or from the Tribunal - Wrigley at [80]; 2. Proceedings have been "determined" if a decision or order has been made which brings the proceedings to an end, whether or not the decision or order may be the subject of appellate or other review - Wrigley at [94]; 3. Proceedings, that have inherent in them a right of appeal, have been "finalised" if they have been completed or disposed of in their entirety, that is, if any rights of appeal have been exhausted - Wrigley at [94]; 4. "proceedings commenced but not determined or finalised" refers to proceedings that have been commenced but not determined or finalised at 30 November 2016 when the 1996 Act was repealed and the 2015 Act, including cl 7 of Sch 3, came into operation - Wrigley at [84].
As has already been explained, cl 7 enabled Mr Shahbazian's application under s 138 of the 1996 Act to be heard and determined after the repeal of that Act, as if it had not been repealed. That, however, is not the only effect of cl 7 in the present case. In determining the original proceedings by virtue of cl 7, the Adjudicator made orders under the 1996 Act as if it had not been repealed. The question then arises whether and for how long such orders were in force or effective. In our view, the legislative command in cl 7 that the "proceedings [to which cl 7 applies] … are to be … determined as if the [1996] Act had not been repealed" means that the orders by which the proceedings are "determined" have force and effect as if the 1996 Act had not been repealed. Put another way, proceedings are "determined" when effective orders are made. Thus, if proceedings are to be determined "as if the [1996] Act had not been repealed", as cl 7 requires, it follows that those determinative orders will be in force and have effect also in accordance with the 1996 Act, as if it had not been repealed.
As noted above, s 210 of the 1996 Act provided that an order, including an adjudicator's order, took effect when a copy of the order was served on the applicable person, in this case, the Owners Corporation. Further, under s 172, an order such as order 1(b) ceased to have force or effect after two years from the making of the order.
If it were otherwise, an adjudicator's determination of proceedings under cl 7 would be pointless. If the orders made determining such proceedings did not take effect as if the 1996 Act had not been repealed, those orders would not take effect at all, as there is no legislative support for adjudicators' orders in the 2015 Act. Such a result would be an absurdity.
Adopting the construction that orders made in proceedings under cl 7 take effect as if the 1996 Act had not been repealed, we conclude that order 1(b) was and is effective to impose an obligation on the Owners Corporation from the date on which a copy of the order was served on the Owners Corporation. It ceases to have force and effect after 7 December 2018.
In our view, cl 7 does not, however, provide a basis for Mr Shahbazian's making an application under s 202 of the 1996 Act, after its repeal, for the imposition of a pecuniary penalty for non-compliance. Those enforcement proceedings were not commenced until 7 April 2017, after the repeal of the 1996 Act. Consequently, they do not fall within cl 7, because that clause only applied to proceedings commenced under the 1996 Act before 30 November 2016. When Mr Shahbazian lodged his application for the imposition of a civil penalty under s 202 of the 1996 Act, that Act had been repealed and s 202 no longer existed. The common law position is that, in the absence of any legislative provision to the contrary, if an Act is repealed it is regarded as having never existed except as to matters and transactions past and closed - University of Wollongong v Metwally (1984) 158 CLR 447 at 465-6; [1984] HCA 74 and the authorities there cited. Consequently, in the absence of some legislative provision that permitted proceedings to be commenced under the 1996 Act after it had been repealed, it was not possible to lodge an application for orders under s 202 of the 1996 Act on 7 April 2017. Clause 7 is not such a provision because it only applies if the proceedings were commenced while the 1996 Act was still in force.
We note, for completeness, that there is an argument that enforcement rights, like appeal rights, inhere in the original proceedings and, thus, Mr Shabazian's original proceedings were not "finalised" until all enforcement rights were exhausted. The Appeal Panel held, in Wrigley v Owners Corporation SP 53413 [2017] NSWCATAP 100 at [81] to [83], that appeal rights inhered in proceedings and proceedings were not "finalised", for the purposes of cl 7, until all appeal rights had been exhausted. We do not think it is correct to extend this conclusion, by analogy, to enforcement rights.
The conclusion in Wrigley is not applicable by analogy because appeal rights and enforcement rights are different in nature. Appeal rights such as those under the 1996 Act can be seen as effectively limited to consideration of the questions of whether the Tribunal at first instance had made an error of law and what orders should be made to dispose properly of the original proceedings. In that sense, such appeals did not go beyond what was claimed in the original application. By way of contrast, enforcement proceedings under s 202 did not concern or depend on any aspect of the original proceedings, except the outcome. Rather, such enforcement proceedings depended upon whether or not the orders made had been complied with and whether any penalty should be imposed in the case of non-compliance. In that sense, they were independent of the claims made and what occurred in the original proceedings.
Furthermore, achieving the correct disposition of the original proceedings was the purpose of both the original hearing and any appeal as of right. For this reason, it is appropriate to conclude that an appeal right existing at the time the original proceedings was inherent in the disposition of those proceedings. On the other hand, determining whether orders have been complied with and the consequences that might flow from any non-compliance serves an entirely different purpose from the original proceedings and involves entirely different considerations from those applicable in an appeal as of right. Consequently, it does not follow from the fact that appeal rights inhere in the original proceedings that we should conclude that enforcement rights similarly inhere in those original proceedings.
As to authority, the Appeal Panel in Wrigley referred to a number of relevant cases concerning appeal rights inhering in original proceedings. Unlike the position in relation to appeal rights, there were no authorities brought to our attention, nor are we aware of any, which suggest that enforcement rights, such as those available under s 202 of the 1996 Act, inhere in proceedings in a similar way to appeal rights.
Accordingly, we do not accept that cl 7 of Sch 3 to the 2015 Act operated so as to permit Mr Shahbazian to commence proceedings under s 202 of the 1996 Act on 7 April 2017.
As to cl 9, in our view the Owners Corporation correctly submitted that cl 9 of Sch 3 to the 2015 Act does not apply to the Adjudicator's order 1(b). This is because that order was only made on 8 December 2016 and thus was not in force "immediately before the commencement of [cl 9]", that is on 30 November 2016.

Section 30 of the Interpretation Act

The savings and transitional provisions in Sch 3 to the 2015 Act are not, however, the only relevant statutory provisions. As we have noted above, s 30 of the Interpretation Act makes general provision concerning, among other things, the enforcement of obligations or liabilities accrued or incurred under repealed Acts.
Subject to s 5(2) of the Interpretation Act, s 30(1) relevantly establishes that: 1. the repeal of the 1996 Act does not affect: 1. any obligation or liability accrued or incurred under the 1996 Act - s 30(1)(c); or 2. any legal proceeding or remedy in respect of any such obligation or liability - s 30(1)(e); 1. and any such legal proceeding or remedy may be instituted or enforced, as if the 1996 Act had not been repealed - the chaussette [1] to s 30(1).
Section 5(2) of the Interpretation Act may potentially limit the operation of s 30. Section 5(2) relevantly states: "(2) This Act [including s 30] applies to an Act … except in so far as the contrary intention appears in this Act or in the Act … concerned."
We shall consider the application of s 5(2) after we address how s 30 might apply in the present case.
In considering whether the Tribunal has power to hear and determine Mr Shahbazian's application under s 202 of the 1996 Act, it is necessary to apply both s 30(1) of the Interpretation Act and the savings and transitional provisions in Sch 3 of the 2015 Act.
Clause 7 of Sch 3 to the 2015 Act had the effect of continuing the operation of 1996 Act, after its repeal, in proceedings commenced under the 1996 Act but not determined and finalised before its repeal. Mr Shahbazian's original application was such a proceeding. Thus, on 8 December 2016 the Adjudicator had power to make order 1(b) against the Owners Corporation under s 138 of the 1996 Act.
Under order 1(b), the Adjudicator ordered the Owners Corporation to repair or replace the lot 12 external garage door and door frame. As we have explained above, that order was and is in force and effective from when a copy of the order was served on the Owners Corporation on about 8 December 2016 until 7 December 2018.
Section 30(1)(c) of the Interpretation Act has the effect of preserving any "obligation or liability … accrued or incurred under" a repealed Act. The initial issue is whether there is an "obligation" or "liability", within the meaning of s 30(1)(c). The next issue is whether that obligation or liability was "accrued or incurred under the [repealed] Act".
The provisions of s 30 are in substance the same as the corresponding provisions of other interpretation statutes in Australian and in the United Kingdom. Consequently, judicial consideration of those other provisions can be of assistance.
The words "obligation or liability" appeared in s 7(2) of the Acts Interpretation Act 1958 (Vic) in a context substantially the same as s 30(1) of the Interpretation Act. In Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 585; [1967] HCA 30, the High Court considered the meaning of those words. Windeyer J, at 585, said: "'Liability' can be, and often is, used as a synonym for "duty" or "obligation" ; but Sir George Paton in his book Jurisprudence, 3rd ed. (1964), by Professor Derham p. 242, uses it in an opposed sense. 'Obligation', he says, 'should be sharply distinguished from liability. Obligation relates to what a person ought to do because there is a duty laid upon him : liability to what he must do because he has failed to do what he ought.' The term 'liabilities' when used to describe unpaid debts reflects this meaning. … It seems to me that without descending to too much refinement there are at least three main senses in which lawyers speak of a liability or liabilities. The first, a legal obligation or duty : the second the consequence of a breach of such an obligation or duty : the third a situation in which a duty or obligation can arise as the result of the occurrence of some act or event. It is in the third sense that s. 5 (1) speaks of an employer as liable to pay compensation in accordance with the Act. But I do not think it is the sense in which it is said that an amending Act does not disturb existing liabilities arising out of past transactions. That to my mind describes a liability having become complete by past events rather than a situation in which some future event must occur to make the effect of past events create a completed liability."
The House of Lords considered the word "obligation" used in the corresponding English provision, s 16 of the Interpretation Act 1978 (c. 30) (UK), in Aitken v South Hams District Council [1995] 1 AC 262. That case concerned a notice requiring the abatement of a noise nuisance arising from barking dogs served by a local authority on a defendant under the Control of Pollution Act 1974 (UK). Under that Act, contravention of such a notice was punishable as a summary offence. After the notice was issued but before the contravention, the Control of Pollution Act was repealed. The House of Lords held that the notice remained effective after the repeal of the Act by operation of s 16(1)(b) of the UK Interpretation Act, thus there was an accrued obligation to comply with the notice within s 16(1)(c) and the ability to enforce the obligation was preserved by s 16(1). Lord Wolfe held, at 271: "If the notice [requiring a person to restrain dogs from barking] remains effective, then the 'obligation' to comply with the notice would also be preserved by section 16(1)(c). This is subject to section 16(1)(c) applying to an 'obligation' enforceable under the criminal, as well as the civil, law …. As to this, although the application of section 16(1)(d) is confined to the criminal field, I do not consider that this means that the words 'obligation or liability' referred to in section 16(1)(c) have to be regarded as being restricted to a civil obligation or liability. The words remain appropriate to cover an obligation or liability enforceable under the criminal law. While 'right' and 'privilege', which are also referred to in section 16(1)(c), have a distinctly civil flavour, this is not equally true of 'obligation' and 'liability'. It is perfectly possible for the same enactment to create an obligation or a liability which is both enforceable in a civil action, by a claim for damages, and by a criminal sanction. It would be strange if, in that situation, section 16(1) could preserve the obligation or liability so far as it was enforceable in a civil action, but not so far as it was enforceable in criminal proceedings. To my mind the important question is where there is an obligation or liability rather than how that obligation or liability is enforced. The question of enforcement is dealt with in section 16(1)(e) and that provision clearly applies equally to civil and criminal enforcement."
It appears that the House of Lords was not familiar with civil pecuniary penalties, such as those available under s 202 of the 1996 Act as well as many other State and Commonwealth statutes. Nonetheless, the reasoning of Lord Wolfe is equally applicable in this case to an order of an adjudicator requiring a person to take certain action, potentially enforceable by the imposition of a civil penalty.
There is obvious scope for some overlap between "obligation" and "liability" as used in s 30(1). Unless there is some good reason to the contrary, meaning should be given to each word in a statute on the basis that the word adds something which would not be there if the word was left out - The Commonwealth v Baume (1905) 2 CLR 405 at 414 and 419, Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 12-13, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71].
Having regard to the text, context, scope and purpose of s 30(1) and these cases, we are of the view that in s 30(1)(c): 1. "obligation" includes a reference to a duty or binding requirement on a person to take or refrain from taking certain action; 2. "liability" includes a reference to a binding requirement on a person arising out of some past failure or transaction.
Having been legitimately made under s 138 of the 1996 Act by virtue of cl 7 of Sch 3 to the 2015 Act, order 1(b) established a binding requirement on the Owners Corporation to carry out certain actions and thus gave rise to an "obligation" within the meaning of s 30(1)(c).
The next question that arises under s 30(1)(c) is whether that obligation was "accrued or incurred" under the 1996 Act.
In relation to "accrued", the House of Lords in Aitken v South Hams District Council, held at 272: "if the notice [requiring a person to restrain dogs from barking] was effective, the obligation was a real and continuing one which had therefore accrued."
The Supreme Court of the United Kingdom commented more recently on the meaning of "accrued" in Tael One Partners Limited v Morgan Stanley & Co International PLC [2015] UKSC 12 at [42]: "The word "accrue" is generally used to describe the coming into being of a right or an obligation (as, for example, in Aitken v South Hams District Council [1995] 1 AC 262), so that the person in question then has an accrued right, or is subject to an accrued liability, as the case may be. That is the meaning which accrual usually bears, in particular, in relation to interest and other payments. The amount to which there is an entitlement may not be payable until a future date, but an entitlement may nevertheless have accrued.…"
It thus appears that, for an obligation to be "accrued" in the relevant sense, the obligation must have come into being and been real and continuing at the relevant time. There can be no doubt in the present case that order 1(b) came into being when it was made and involved an obligation to comply with its terms. Further, the obligation to comply with that order was real and continuing from when it took effect until it ceases to have force and effect two years after it was made, as prescribed by s 172. Thus, there was an obligation "accrued" within the meaning of s 30(1)(c).
The source of the obligation to comply was the 1996 Act, as continued in operation by cl 7 of Sch 3 to the 2015 Act. Thus, it is correct to say that the obligation was accrued under the 1996 Act, even though that Act had been otherwise repealed by the 2015 Act when the order was made.
Accordingly, there was an "obligation … accrued … under the [repealed 1996] Act", within the meaning of s 30(1)(c) of the Interpretation Act. In those circumstances, s 30(1)(c) operates so that the repeal of the 1996 Act did not affect that obligation.
Then, in accordance with s 30(1)(e), the repeal of the 1996 Act also did not affect "… any … legal proceeding or remedy in respect of any such … obligation". Mr Shahbazian's application under s 202 of the 1996 Act was such a "legal proceeding" seeking a "remedy" in respect of the obligation imposed by order 1(b).
Finally, under the chaussette to s 30(1), "any such … legal proceeding or remedy… may be instituted ... or enforced, as if the [1996] Act … had not been … repealed". Accordingly, Mr Shahbazian was entitled to institute his enforcement proceedings under s 202 and the remedy provided by that section could be enforced, as if the 1996 Act had not been repealed.
As a consequence and subject to the operation of s 5(2) of the Interpretation Act, the Tribunal can proceed to hear and determine Mr Shahbazian's application under s 202, as if the 1996 Act had not be repealed.

No contrary intention disclosed

As we have already noted, s 5(2) of the Interpretation Act creates a potential inhibition on the application of s 30 "in so far as the contrary intention appears in [the Interpretation] Act or in the [2015] Act". To the extent that Ms Crittenden submitted that a contrary intention was disclosed, for the reasons below, we reject that submission.
In respect of the contrary intention referred to in s 5(2), the High Court held in ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18; at [52]: "A contrary intention sufficient to displace s 30 of the Interpretation Act must ordinarily appear with the same reasonable certainty as is needed to displace the general common law rule. A contrary intention need not be express and its implication, although sometimes referred to as "necessary implication", has not been confined to those extreme circumstances in which alteration of an existing right or liability "cannot be avoided without doing violence to the language of the enactment". The cases, rather, demonstrate that a contrary intention will appear with the requisite degree of certainty if it appears "clearly" or "plainly" from the text and context of the provision in question that the provision is designed to operate in a manner which is inconsistent with the maintenance of an existing right or liability." (footnotes omitted)
There is nothing in the Interpretation Act which discloses an intention that s 30(1) should not apply in respect of the repeal of the 1996 Act and its replacement with the 2015 Act. As to the terms of the 2015 Act, the only potentially relevant provisions are those found in Sch 3, the savings and transitional provisions. We have set out the relevant clauses, cll 3, 7 and 9, above.
There is no intention contrary to the application of s 30(1) expressly disclosed in any of those clauses.
Furthermore, nothing in cl 3 is inconsistent with cl 30(1) operating as set out above, especially since that clause is limited to circumstances which do not arise in the present case, as we have already explained.
Clause 7 continues the operation of the 1996 Act to proceedings commenced under that Act but not determined or finalised prior to its repeal. This is entirely consistent with, and in the present case provides a foundation for, the operation of s 30(1) of the Interpretation Act. No contrary intention is implicit in that clause.
As to cl 9, that clause has no operation in relation to an order such as order 1(b), which was not in force immediately prior to the commencement of the 2015 Act. Even if it did, cl 9 does not establish, expressly or impliedly, an exclusive regime for how adjudicators' orders are to be treated after the repeal of the 1996 Act. Clause 9 provides a mechanism for dealing with a limited class of adjudicators' orders but it does not exclude the orders being dealt with in other ways, to the extent that those ways are available.
In our view, it would be erroneous to conclude that it appears "clearly" or "plainly" from the text and context of those savings and transitional clauses that they are designed to operate in a manner that is inconsistent with the maintenance and enforcement of obligations accrued under the 1996 Act, as provided by s 30(1) of the Interpretation Act. Accordingly, neither the Interpretation Act nor the 2015 Act discloses an intention contrary to the application of s 30(1) in the present case.

Summary

As there is no contrary intention disclosed, the operation of cl 7 of Sch 3 to the 2015 Act and s 30(1) of the Interpretation Act in the present case can be summarised as follows: 1. under cl 7 of Sch 3 to the 2015 Act, the 1996 Act continued to operate in respect of the original proceedings and order 1(b) took effect and continues in effect, as if the 1996 Act had not been repealed; 2. the repeal of the 1996 Act did not affect the obligation imposed on the Owners Corporation by order 1(b) which accrued under the repealed Act, by virtue of s 30(1)(c); 3. by operation of s 30(1)(e), the repeal of the 1996 Act did not affect any legal proceeding or remedy in respect of the obligation imposed by order 1(b); and 4. the ability to institute legal proceeding to enforce compliance with order 1(b), as if that Act had not been repealed, including by making an application under s 202 of the 1996 Act, was preserved by the chaussette to s 30(1).
Given the conclusion we have reached based on the obligation on the Owners Corporation, it is not necessary for us to consider whether or not Mr Shahbazian had any "right … accrued under the [1996] Act" at any relevant time for the purposes of s 30(1) of the Interpretation Act.

Conclusion on whether the Tribunal can Hear and Determine the s 202 Application

Thus, Mr Shahbazian was entitled to institute proceedings under s 202 of the 1996 Act and the Tribunal can hear and determine those proceedings, as if the 1996 Act had not been repealed.
Accordingly, the answer to the question: "Does the Tribunal have power to hear and determine the application for a penalty under s 202 of the Strata Schemes Management Act 1996 (NSW) in this matter?" is "Yes".

Endnote

We use "chaussette" (the French word for sock) in this context to refer to the concluding general words of a statutory provision. This is by analogy with "chapeau", the French word for hat, which is used to refer to the introductory general words of a statutory provision appearing above a number of paragraphs which are all governed by the introductory words. As far as we can ascertain "chausette" was first used in this way by Perram J in SMA Solar Technology AG v Beyond Building Systems Pty Ltd (No 5) [2012] FCA 1483 at [79]. The term was later adopted by A.J.L. Bannon SC, in oral arguments before the High Court, in Astrazeneca AB & Anor v Apotex Pty Ltd [2015] HCATrans 106. Parker J in Viljoen v Hayes [2017] NSWSC 801 at [26] has recently adopted the use of "chaussure" (French for shoe) instead of "chausette" to refer to the concluding words of a provision. 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

Amendments 25 September 2017 - 25 September 2017 - typographical errors corrected. 12 October 2017 - further typographical errors corrected. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 October 2017

Strata Schemes Management Act 1996(NSW)ss 138, 172, 202, 275

Acts Interpretation Act 1958(Vic)

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