Sunaust Properties Pty Ltd v The Owners SP no 64807

The First Instance Decision

1. From [272] the Decision dealt with the issue of whether s 72 of the Strata Act could apply to the Caretaker Agreement. The Decision traced the relevant history leading to the enactment of s 72. The Strata Schemes Amendment Act 2002 (the 2002 Act) took effect on 10 February 2003 and that Act introduced provisions concerning caretaker agreements: see ss 40A, 40B, 40C and 183A. Specifically, s 183A gave the predecessor of the Tribunal powers to make an order terminating a Caretaker Agreement. The 2002 Act amended the Strata Schemes Management Act 1996 which did not contain provisions permitting termination of a caretaker agreement.
2. The 2002 Act contained clause 12 in part 4 of schedule 4. The Tribunal held at [278] that the effect of clause 12 was to render existing caretaker agreements subject to the 2002 Act (but not in relation to the term of such agreements). The provisions of cl12 are set out below: "12 Effect of certain common property management agreements (1) Any agreement that was in force immediately before the commencement of Part 4A of Chapter 2 that, if entered into after that commencement, would be a caretaker agreement is taken to be a caretaker agreement appointing a caretaker. (2) However: (a) the caretaker is not required to be or have been entitled to exclusive possession of a lot or common property either while the agreement is in force or as a precondition to entering into the agreement, and (b) section 40B (2) does not apply to such an agreement, and (c) an application for an order under section 183A may not be made with respect to such an agreement on the ground that the period for which the agreement is in force is harsh, oppressive, unconscionable or unreasonable."
3. At [279] the Decision dealt with the introduction of the Strata Act on 30 November 2016 (when the earlier relevant legislation was repealed). Schedule 3 of the Strata Act contains savings, transitional and other provisions. Clause 15 deals with caretakers and building managers and provides that an agreement in force immediately before the commencement of clause 15 is taken to be a building manager agreement for the purposes of the Strata Act if the agreement contains the characteristics described in clause 15(1)(a), (b) and (c). Clause 15 is set out below: 15 CARETAKERS AND BUILDING MANAGERS (1) An agreement in force immediately before the commencement of this clause is taken to be a building manager agreement for the purposes of this Act, despite any of the provisions of the agreement, if-- (a) the agreement provides for the appointment of a person to carry out any of the functions specified in section 66 (1) in relation to the owners corporation for a strata scheme, and (b) the primary purpose of the agreement is to provide for that appointment and related matters, and (c) the person is not entitled to exclusive possession of a lot or common property in the strata scheme. (2) Any such building manager agreement expires 10 years after the commencement of this clause unless the terms of the agreement provide that it expires on an earlier day or the agreement is terminated on an earlier day. (3) A reference in any instrument to a caretaker in relation to a strata scheme is taken to be a reference to a building manager in relation to that scheme.
4. For reasons which we will later explain cl3 in Schedule 3 is relevant and its terms are set out below: 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.
5. At [282] the Tribunal noted that the terms "caretaker agreement" (the term used in the 1996 Act) and "building management agreement" (the term used in the Strata Act) are synonymous by reason of s 40A(4) of the 1996 Act and clause 15 of the Strata Act.
6. At [283] the Tribunal stated that the 2002 amendments to the 1996 Act only impacted on agreements when the caretaker had exclusive possession of a lot and that the Strata Act, by s 66(4), expanded the position by stating that a building manager may be a person who is entitled to exclusive possession of a lot or common property.
7. At [284] the Decision referred to the contention of the caretaker (now the Appellant) that clause 15 operated to exclude agreements which did include exclusive possession of one or more lots that were in existence on 30 November 2016 (when the Strata Act commenced) because clause 15 only operated to subject such an agreement to the Strata Act if the caretaker was not entitled to exclusive possession of a lot.
8. At [285] the Tribunal found that when clause 15 is "viewed in the context of the expansion of the rights in relation to agreements to include agreements where the caretaker is not entitled to exclusive possession of a lot, the position is that clause 15 was expanding the operation of rights to give rights not only in relation to caretakers who did have exclusive possession of a lot but also in relation to caretakers who did not have exclusive possession of a lot".
9. At [289] the Tribunal stated that the provisions of the 1996 Act, after it was amended in 2002, were confined to caretaker agreements where the caretaker did have exclusive possession of a lot while the Strata Act was not so confined as it applied whether or not the caretaker had exclusive possession. At [293] the Tribunal found that an Owners Corporation which has a caretaker agreement which commenced on or after 30th November 2016 has a right of termination under s72 regardless of whether the caretaker is entitled to exclusive possession of one or more lots. For an Owners Corporation which has a caretakers agreement under which the caretaker does have exclusive possession of one or more lots, which agreement commenced prior to 30th November 2016 such Owners Corporation had termination rights under s183A of the 2002 Act and has the same rights (with more extensive grounds being available) under the Strata Act.
10. From [295] the Tribunal considered the decision of the Court of Appeal in Australian City Properties Management Pty Ltd v The Owners- Strata Plan No 65111[2021] NSWCA162. At [301] the Tribunal said that that case can be distinguished on the basis that it concerned the term of the caretaker agreement and not termination. The Tribunal also said that if the ACPM case cannot be distinguished and that the view there taken of cl15 ( namely that it does not apply to caretaker agreements where the caretaker was entitled to exclusive possession) is binding then the Respondent is still entitled to a termination order on the same basis as in the ACPM case ( namely that rights acquired under the 2002 Act survive by reason of s30 of the Interpretation Act 1987 [301].Section 30 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-- (a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (d) affect any penalty incurred in respect of any offence arising 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. (2) Without limiting the effect of subsection (1), the amendment or repeal of an Act or statutory rule does not affect-- (a) the proof of any past act or thing, or (b) any right, privilege, obligation or liability saved by the operation of the Act or statutory rule, or (c) any amendment or validation made by the Act or statutory rule, or (d) the operation of any savings or transitional provision contained in the Act or statutory rule. (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. (4) In this section, a reference to the amendment or repeal of an Act or statutory rule includes-- (a) a reference to the expiration of the Act or statutory rule, (b) a reference to an amendment or repeal of the Act or statutory rule effected by implication, (c) a reference to the abrogation, limitation or extension of the effect of the Act or statutory rule, and (d) a reference to-- (i) the exclusion from the application of the Act or statutory rule, or (ii) the inclusion within the application of the Act or statutory rule, of any person, subject-matter or circumstance.
11. At [304] the Tribunal stated that the Respondent is entitled to a termination order either by reason of the Tribunal's interpretation of the relevant legislation or by application of the reasoning in ACPM.
12. At [303] the Tribunal noted that in this case the Caretaker Agreement involved the caretaker acquiring a right to have exclusive possession of two lots.

The Appellant's submissions concerning grounds1 and 2

1. The following summarises the Appellant's submissions with respect to grounds 1 and 2: 1. When the 1996 Act was repealed in 2015, much of it was replaced by the Strata Act but some of it was not. The Strata Act "expressly sculpted out" existing caretaker agreements from its regulation of building manager agreements by way of clause 15 of schedule 3 of the Strata Act. It did this by defining the type of Agreement that was to be deemed a "building manager agreement" under the Strata Act to be that which did not entitle the person to exclusive possession of a lot or common property within the scheme. Here, the Caretaker Agreement provided for the caretaker to have exclusive possession of two lots within the scheme. The Caretaker Agreement is therefore not a building manager agreement for the purposes of the Strata Act. 2. The Caretaker Agreement was an agreement between two parties and was not an "act, matter or thing done or omitted to be done under a provision of the former Act (ie. under the 1996 Act). Accordingly, clause 3 of Schedule 4 did not apply and the Caretaker Agreement did not fall under the Strata Act. 3. The Decision referred to the judgment of the New South Wales Court of Appeal in the ACPM case. However, that case did not address the question of whether a caretaker agreement entered into before 2002 fell within cl3 of sch3 of the Strata Act. 4. In any event, even if the Strata Act would have otherwise applied cl 3(2)(a) of Schedule 3 expressly provided that the Act did not apply 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. 5. In the ACPM case, the Court of Appeal expressly rejected the primary judge's finding that the general savings provision in cl 3, Sch 3 of the Strata Act applied to the effect that the caretaker's agreement in that case was taken to have been done under the Strata Act. To the contrary, the Court of Appeal found that the caretaker's agreement in that case (entered into in March 2001) provided for the caretaker to have exclusive possession of a lot, and that was inconsistent with Sch 3 cl 3 (ie the provisions of cl3 did not apply). This contradicts the Tribunal's reasoning culminating at paragraphs [293]-[294]. The ACPM case makes clear at [338]-[340] that a caretaker's agreement such as that in this case, (ie. made in March 2001, with an entitlement to exclusive lots in the strata scheme) is not the subject of the Strata Act. 6. Accordingly, the Tribunal had no jurisdiction to make the orders sought under the Strata Act.

Respondent's Submissions with respect to Grounds 1 and 2

1. The Respondent's submissions can be summarised as follows: 1. The Tribunal's decision and reasoning is respectfully correct. 2. The express legislative intent in s 66(4) of the Strata Act is that it is no longer relevant whether or not a building manager is entitled to exclusive possession of a lot or common property. This was an important change from the position under s 40A of the 1996 Act where the definition of a "caretaker" required that the person be entitled to exclusive possession. 3. The Appellant's contention that the parties entering into the present caretaker agreement on or about 16 March 2001 was not an "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 the provision of this Act" because "At that time there was no provision in the [1996 Act] regarding caretaker agreements (let alone building manager agreements)" is plainly wrong and should not be accepted. 4. The Appellant's submission ignores the effect of Sch 4 cl 12(1) of the 1996 Act which provides that an agreement that was in force immediately before the commencement of Part 4A of Chapter 2 of that Act that, if entered into after that commencement, would be a caretaker agreement is taken to be a caretaker agreement appointing a caretaker. The Respondent contends that this provision deems the present Caretaker Agreement, which was entered into prior to the 2002 amendments to the 1996 Act entering into force on 10 February 2003 to be a "caretaker agreement" for the purposes of the 1996 Act. Accordingly, s 30 of the Interpretation Act 1987 operates to ensure that the repeal of the 1996 Act does not affect the prior operation of the Act or any privilege, right, obligation or liability acquired under it.
2. The Appellant has filed submissions in reply which we have considered but it is not necessary to record them in this decision.

Correspondence and Submissions following publication of our decision on 27 July 2022

1. By letter dated 27 July 2022 the solicitors for the Respondent wrote to the Tribunal and stated that their client wished to draw to the attention of the Appeal Panel under s 63 of the NCAT Act an apparent omission to deal with appeal grounds 1 and 2. The letter stated that it was their client's view that it is a necessary prerequisite to the Tribunal having jurisdiction to deal with the application on remittal that there be a determination of grounds 1 and 2.
2. By directions issued on 10 August 2022, we sought submissions from the Appellant in relation to the letter from the Respondent's solicitors and also reply submissions from the Respondent. Such submissions have been received and, in addition, the Appellant has filed and served submissions on costs (responsive to the direction made in our Decision published 27 July 2022). The parties were requested to include submissions as to whether we may determine the Respondent's application on the papers without the necessity for a further hearing.

The Appellant's submissions on the application by the Respondent

1. The Appellant contends that there was no s 63 error or omission made by the Appeal Panel and that the Appeal Panel expressly dealt with the very issue that the Respondent now attempts to have reconsidered. The substance of the Respondent's application is to seek to have the Appeal Panel reconsider its finding at [6] that grounds 1 and 2 of the appeal need not be dealt with. The basis of the application brought by the Respondent's solicitor is under s 63 of the NCAT Act. It provides: 63 Power to correct errors in decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where-- (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons.
2. The Appellant contends that s63 is the "statutory form of the common law "slip rule". The slip rule cannot be enlivened, and has no application, where there has been a deliberate decision on an issue, as is the case here.
3. The Appellant's submissions refer to the Appeal Panel decision in Bruce v Knight (No 3) [2001] NSWCATAP 343 where the Appeal Panel summarised applicable case law and principles. For the purposes of this decision those principles may be summarised as follows: 1. The purpose of s 63 is to avoid injustice by permitting rectification of errors or omissions in the orders or reasons. The test for applying it has been held to be whether, if the matter had been drawn to the Tribunal's attention, a mistake or omission would have been corrected at once. 2. The slip rule is surprisingly wide in scope. It can apply even if there are different possible "corrections" provided that the choice between them is not a matter of controversy or substance or requires exercise of an independent judgment. 3. The slip rule should not be used as a vehicle for reopening a decision which has already been published to the parties. The rule should be limited to the subject matter expressly referred to in s 63, namely for the correction of obvious errors. In many cases the slip rule is invoked when a judgment or order fails to express correctly the intention of the court at the time when the judgment or order was announced but through inadvertence was not dealt with. 4. The slip rule has no application to allege mistakes that are a consequence of a deliberate decision.
4. In this case the appeal decision expressly and unambiguously stated that it was not necessary, in the light of the Appeal Panel's conclusion, to consider the other grounds of appeal. A deliberate decision was made and there was no accidental inadvertence in not dealing with other grounds.
5. The Appellant further submits that the appeal decision has discharged the Appeal Panel's obligations and the Panel is functus officio. Difficulties may arise if the Appeal Panel were to issue a second judgment on one particular issue that did not determine the outcome of the appeal because there would be no reason why the Appeal Panel should not decide some or all of the other matters. A second decision could give rise to procedural complexities and difficulty. The determination of appeal grounds 1 and 2 are not a necessary pre-requisite to the Tribunal having jurisdiction to deal with the application on remittal (as contended by the solicitors for the Respondent).
6. The Appellant's submissions state that if the Respondent wishes to "persist in its application at first instance" the Appellant will not oppose the further hearing being conducted on its merits and will reserve its position on the jurisdictional issue encompassed by grounds 1 and 2 of the appeal, thus leaving a determination of those issues in abeyance until final submissions.
7. The Appellant further submits that if we determine that it is a necessary pre-requisite for grounds 1 and 2 of the appeal to be determined prior to remittal for any further hearing, it is submitted that the same reasoning applies to a range of other appeal grounds including at least grounds 4-6, 14, 17 and 18.
8. The Appellant submits that the appropriate course is to dismiss the application made by the Respondent. The submissions also included a submission as to costs. We propose to give the parties an opportunity to file further submissions on costs and therefore there is no need to record the current submissions concerning costs.

Respondent's Submissions

1. In the following paragraphs we summarise the Respondent's submissions with respect to whether grounds 1 and 2 should be the subject of determination.
2. The Respondent submits that the question of whether the Tribunal has jurisdiction under s 72 of the Strata Act to make orders in relation to the Caretaker Agreement is fundamental to the Appeal Panel's proposed remittal of the Respondent's application to the Tribunal. If the Tribunal does not have jurisdiction, then no order for remittal can properly be made.
3. There are practical considerations in having a determination of grounds 1 and 2. If on remittal the Appellant may rerun the same arguments regarding the applicability of s 72 to caretaker agreements entered into prior to 10 February 2003, that would constitute such arguments being raised for the third time with the possibility of a fourth time occurring if there is a subsequent appeal.
4. It should be assumed that the Appeal Panel in making a remittal order was cognisant of both the legal necessity for it to have formed the view that the Tribunal has the statutory jurisdiction to determine an application for orders under the Strata Act with respect to building manager agreements formed before 10 February 2003 that would be required for a valid remittal as well as issues of a possible failure to exercise jurisdiction. It appears more probable that the absence of an express statement rejecting grounds 1 and 2 was an accidental slip or omission to record that matter in the decision. The Respondent does not seek to reopen issues that were decided but rather seeks merely to have the Appeal Panel record expressly a matter that it inadvertently omitted to record despite by implication having apparently formed a view.
5. The Appeal Panel should be comfortably satisfied that the present accidental slip or omission regarding grounds 1 and 2 fall within its powers under s 63 of the NCAT Act.
6. Further submissions were received from the Appellant in reply to the Respondents submissions. There was no direction for the Appellant to do so and the Appellant sought leave to file the submissions. In our view they do not assist in determining the issues and leave is refused.

Section 63 Application

1. We are of the view that the Respondent's application under s63 (the slip rule) and, if that application is upheld, the determination of appeal grounds 1 and 2 may be determined by us without the necessity for a further hearing.
2. We may dispense with a further hearing by making an order under s50 of the NCAT Act. Both parties have been given an opportunity to make submissions as to whether such a course is appropriate. Our view is that the Respondents application under s63 may be adequately determined in the absence of the parties by considering their written submissions because the issues for consideration have been fully ventilated in those submissions. For the reasons explained below we think it is appropriate to grant the Respondent's application and alter the text of our earlier decision.
3. With respect to appeal grounds 1 and 2, submissions have been filed and served and those ground were the subject of oral submissions at the hearing of the appeal on 9th June 2022. It is not necessary to make an order to dispense with a hearing with respect to our determination of those grounds.
4. In our decision of 27 July 2022, we stated that we did not consider grounds 1 and 2 of the Notice of Appeal. The decision we made was that the Tribunal has no jurisdiction to determine the Respondent's application in its current form because of the existence of concurrent issues with issues in the Supreme Court and thereby the engagement of clause 5(7) of the NCAT Act. However, rather than dismissing the Respondent's application we remitted it back to the Consumer & Commercial Division of the Tribunal so that the Respondent may have the opportunity to prosecute the application again without reliance on issues before the Supreme Court.
5. By not considering grounds 1 and 2 we overlooked making a determination as to whether the Tribunal has no jurisdiction to determine the Respondent's application even in the absence of issues engaging clause 5(7) because of the possibility that the Caretaker Agreement is not regulated by the Strata Act. This was one of the Appellant's contentions and, if upheld, the appropriate order would have been to dismiss the Respondent's application at first instance. In other words, a remittal would not have been appropriate.
6. As the Respondent's application, at first instance, currently stands, if following the remittal, the application is not reconstituted the appropriate order to be made by the Consumer & Commercial Division would be to dismiss the application. However, if the application is reconstituted so that the issues upon which it relies do not engage clause 5(7) the jurisdictional issue raised by grounds 1 and 2 would remain a live issue. This was essentially the reason behind the Respondent's application under s 63 of the NCAT Act. The Appellant says in its submissions that it reserves its position with respect to the jurisdictional issue identified by grounds 1 and 2 and will leave that issue in abeyance until final submissions at the final hearing of the reconstituted application.
7. By stating, as we did in paragraph 6 of our decision published 27 July 2022 that because the Tribunal does not have jurisdiction by reason of clause 5(7), it is not necessary to consider the other grounds of appeal, we omitted to consider the effect of permitting the Respondent to reconstitute its application upon the continuing relevance of appeal grounds 1 and 2. In other words, if on the remittal the Respondent proceeds with its application, grounds 1 and 2, if upheld, would have meant that the application was beyond the jurisdiction of the Tribunal. If, on the other hand, grounds 1 and 2 were dismissed the Respondent's reconstituted application could proceed to final hearing and be determined.
8. The result of omitting to determine grounds 1 and 2 is that there is an inconsistency potentially arising between the decision we have made (the remittal order) and the reasons (namely the statement that it was not necessary to consider grounds 1 and 2).
9. Accordingly, we are of the view that the omission to consider grounds 1 and 2 and the inconsistency between the decision and the reasons means that we should uphold the Respondent's application and alter the text of our decision of 27 July 2022 by including our views on those two grounds of appeal.
10. In Bruce v Knight (No 3) (see earlier citation) the Appeal Panel identified the purpose of s 63 (which is avoid injustice by permitting rectification of errors or omissions in orders or reasons) and also set out the parameters for the exercise of the powers given by s 63. Although it may be said that there was a deliberate decision by us not to consider grounds 1 and 2, that decision was occasioned by an omission to consider the effect of a remittal order and the coexisting live issue represented by grounds 1 and 2.
11. In short, we are in agreement with the Respondent's submissions as earlier recorded. Our view is consistent with the provisions of s 36 of the NCAT Act which requires the Tribunal to determine issues in a manner which is just, quick and cheap.
12. The Appellant submits that if we were to determine grounds 1 and 2 there would be no reason why we should not determine the other grounds of appeal. We do not agree. If we uphold grounds 1 and 2 the other grounds of appeal do not need to be considered because the Respondent's application at first instance will be dismissed. If we reject grounds 1 and 2 and the Respondent elects to proceed on remittal with its application as reconstituted, the other grounds of appeal will have no relevance because the factual background to the reconstituted application will be different from the factual background which the other grounds of appeal seek to address.
13. For example, grounds 4-8 concern whether the Tribunal afforded procedural fairness. Grounds 5 and 6 concern submissions that the Tribunal failed to take into account the evidence concerning the Appellant's long-term fulfilment of the Caretaker Agreement. Ground 7 concerns the finding made that the fees were unfair. Grounds 10,11 and 13 concern findings made by the Tribunal said to be made without evidence. Ground 14 concerns the submission as to how an aspect of s 72 of the Strata Act should be construed. Ground 17 concerns whether the Tribunal did not take account of the Respondent not paying money said to be due to the Appellant. Ground 18 concerns whether the Tribunal should have imposed a remedy other than termination. A reconstituted application proceeding on remittal will give rise to different facts and therefore different findings. The other grounds of appeal, in their present form, will not have relevance to the reconstituted application.
14. However, for the reasons earlier indicated, grounds 1 and 2 are in a different category because they are to the effect that the Caretaker Agreement predates the relevant legislation and that therefore the Tribunal's source of power does not operate to permit the Tribunal to make any order with respect to this Caretaker Agreement.
15. Our conclusion is that we should make a direction as contemplated by s 63 of the NCAT Act because we are satisfied that there is an obvious error in the written statement of reasons of 27 July 2022. The direction we make is this: The Registrar is directed to forward to the parties this decision which is to be read in conjunction with our decision of 27 July 2022.

Grounds 1 and 2 of the Grounds of Appeal

1. We are of the view that grounds 1 and 2 should be rejected. Our view concerning the issues raised by these grounds is consistent with the view of the Tribunal at first instance. Accordingly, the orders (1),(2) and (3) made in our decision of 27 July 2022 do not require to be changed. We will make an order affirming orders (1), (2) and (3) made on 27 July and lift the stay on the operation of order (3). We will separately deal with costs later in these reasons.
2. It is common ground that when the Caretaker Agreement was entered in March 2001 the 1996 Act did not contain provisions which would enable the termination of the Caretaker Agreement.
3. The 2002 Act (which amended the 1996 Act) came into effect in February 2003.
4. Clause 12 in Pt 4 of Sch 4 of the 2002 Act provided that any agreement that was in force immediately before the commencement of Part 4A of Chapter 2 that, if entered into after that commencement, would be a caretaker agreement is taken to be a caretaker agreement appointing a caretaker. Clause 12(2) contained the provision that s 40(b)(2) of the 2002 Act does not apply to such an agreement. This meant that the provisions of s 40(b)(2) limiting the terms of caretaker agreements did not apply to pre-existing caretaker agreements.
5. Accordingly, in our view, the Caretaker Agreement, the subject of the dispute between the parties, became regulated by the 2002 Act subject to the parameters contained in clause 12(2).
6. The Strata Act took effect on 30 November 2016 and clause 15 of Sch 3, contains provisions concerning pre-existing caretakers and building manager agreements. It provides that an agreement in force immediately before commencement of clause 15 is taken to be a building manager agreement for the purposes of the Strata Act if the agreement provides for the appointment of a person to carry out any of the functions specified in s 66(1) in relation to the Owners Corporation for a strata scheme, and if the primary purpose of the agreement is to provide for that appointment and related matters, and the person is not entitled to exclusive possession of a lot or common property in the strata scheme.
7. There are two possible interpretations of clause 15. The first possibility (being the Appellant's contention) is that clause 15 brings under the umbrella of the Strata Act agreements in force immediately before the commencement of the Strata Act only if all the characteristics identified in (a), (b) and (c) are met (thereby including that the person who is the building manager is not entitled to exclusive possession of a lot or common property). In this case the Caretaker Agreement provided for the caretaker to have exclusive possession of a lot or common property, that therefore the Caretaker Agreement is not addressed by clause 15, and that it is not an agreement regulated by the Strata Act.
8. The second possibility (being the Respondent's contention and as found by the Tribunal at first instance) is that the provisions of clause 15 do not operate to exclude from the Strata Act pre-existing caretaker agreements that provide for the caretaker to have possession of a lot or common property. In any event s30 of the Interpretation Act applies to have the effect that such agreements including the Caretaker Agreement are regulated by the Strata Act.
9. Prior to the Strata Act taking effect in 2016 the Caretaker Agreement in this case was subject to the provisions of the 1996 Act as amended by the 2002 Act. That is the effect of cl12 the terms of which are set out earlier. However, by cl12 (2) the provisions in the 2002 Act limiting the term of Caretaker Agreements did not apply to pre-existing agreements. This is the same view as expressed by the Tribunal as recorded in [278] of the Decision.
10. The Strata Act contains two provisions relevant to pre-existing caretaker agreements namely cll 3 and 15. By cl 3(2) clause 3 is to be construed subject to cl 15 to the extent of any inconsistency between the two clauses.
11. Clause 3 provides, in summary, that any act or matter done or omitted to be done under the former Act and having effect immediately before the commencement of the new Act is taken to have been done or omitted to have been done under the new Act. The dispute in these proceeding concerned acts, matters or things done or omitted to be done under the 1996 Act as amended by the 2002 Act and those acts, matters or things are taken to have been done or omitted to have been done under the Strata Act.
12. Clause 15 does not regulate pre-existing caretaker agreements that give exclusive possession of a lot or common property to the caretaker. Clause 15 only regulates pre-existing agreements where the caretaker is not entitled to possession. Pre-existing agreements providing for exclusive possession agreements were regulated by the 1996 Act (as amended by the 2002 Act) and are the subject matter of cl3 rather than cl15. The purpose of cl15 is to address pre-existing caretaker agreements that did not contain a provision entitling a person to exclusive possession of a lot or common property. Such agreements are taken to be building management agreements under the Strata Act.
13. Our reasons are not inconsistent with the judgment of the Court of Appeal in the ACPM case. That case was concerned with deciding the term of the caretaker agreement for the purposes of determining the extent of loss of bargain damages due to the caretaker. The case concerned a caretaker agreement that predated the 2002 Act but had been the subject of amendment or variation in 2010 and in 2015. The judgment at first instance decided that the agreement post-dated 2002 and its term (i.e., duration) was limited by reference to the 2002 Act. The Court of Appeal agreed but said that cl15 had the effect that agreements providing for the caretaker to have exclusive possession of a lot were not addressed by cl15 and were not addressed by cl3 because cl 3 was subject to cl15.However the Court then turned to s30 of the Interpretation Act and held that the effect of s30 was that to the extent the 1996 Act ( as amended in 2002) operated to limit the effect of the 2010 and 2015 agreements the limitation remained in force.
14. In that case the Court held that the caretaker agreement did not fall within the provisions of cl15 as ACPM was entitled to exclusive possession of a lot. We have followed the court in our interpretation of cl15. In deciding that cl3 did not address the Caretaker Agreement because that clause is not to be construed inconsistently with cl15, the Court was considering an agreement that it had determined post dated the 2002 Act for the purpose of determining whether the duration of the agreement was limited by the 2002 Act. The Court was not considering, as we are, whether the Caretaker Agreement may be terminated by the Tribunal under a provision of the Strata Act. The consideration of whether the Caretaker Agreement may be terminated under a provision of the Strata Act involves a consideration what was done or not done under that agreement (engaging cl3) and does not engage cl15 which is concerned with stating that certain agreements not previously regulated are now taken to be agreements under Strata Act.
15. If we are in error in distinguishing the ACPM case for the above reasons we add that s30 of the Interpretation Act operates to provide that the accrued rights and obligations between the parties continue following the repeal of the 2002 Act. By cl 3 they are taken to be rights and obligations under the Strata Act.
16. For the above reasons appeal grounds 1 and 2 are rejected.
17. Accordingly orders 1, 2 and 3 made on 27 July 2022 are affirmed.
18. So far as costs are concerned, directions were made in our decision of 27 July 2022 to the effect that if costs are sought then submissions to that effect should be made. Although the parties may have responded to those directions it is appropriate that we give them a further opportunity having regard to this supplementary decision. Accordingly, we make the following directions with respect to costs: 1. If either party seeks costs (either in respect of the appeal or in respect of the first instance proceedings, the party seeking costs must file and serve written submissions within 21 days of the date hereof in support of such application. 2. Within 21 days thereafter the other party must file and serve written submissions in response to the submissions received. 3. The submissions of the parties should address the question of whether the Tribunal may determine costs on the papers and make an order dispensing with a further hearing. 4. Following the receipt of the s 63 application, the order for remittal was stayed and it is now appropriate that that order be lifted. An order to that effect is made. 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 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: 27 October 2022