The Owners �e" Strata Plan No. 89924 v Discovery Point Co-Operative Ltd [2025] NSWCATCD 95;

1. The first respondent is a co-operative constituted pursuant to the Co-operatives National Law (NSW).
2. The third respondent's submissions state that the second respondent is a building management committee representing the applicant, the first respondent and four other strata schemes all of which exist in the Discovery Point community.
3. The third respondent is the managing agent of the first respondent.
4. On 29 August 2024 by way of an Application for miscellaneous matters (the "Application"), the first respondent, Discovery Point Co-operative Ltd sought an order under section 55 of the Civil and Administrative Tribunal Act 2013 ("NCAT Act") that these proceedings be dismissed by the Tribunal on the basis that the proceedings were misconceived and lacking in substance. It was submitted that NCAT had no jurisdiction to hear the application. The first and third respondents filed written submissions in support of the Application. On 6 September 2024 the following directions were made in connection with the Application:

"3. The applicant must file and serve any further evidence it will rely on in the jurisdictional issue by 9 September 2024.

4. The first and third respondents have leave to file and serve supplemental jurisdiction submissions by 20 September 2024.

5. The applicant has leave to file and serve supplemental jurisdiction submissions by 27 September 2024.

6. The first and third respondents have leave to filed supplemental jurisdiction submissions in Reply by 4 October 2024.

7. The Tribunal notes that the applicant and third respondent consent to the Tribunal determining the Jurisdictional issue on the basis of the parties written submissions without a hearing. The first respondent must state in its submissions the basis it on which it does not consent to that course and why it seeks a hearing on the jurisdiction issue."

1. The times for compliance with orders 5 and 6 were extended to the 2cnd and 9th October 2024 respectively.
2. The parties filed submissions in the Tribunal in accordance with the directions referred to above.
3. In its submissions dated 18 September 2024 the first respondent set out its objection to the strike out application being heard on the papers. It stated:

"The jurisdictional issues are complex, involving the interplay of detailed contractual documents and various pieces of legislation, and of critical importance to the overall outcome of these proceedings. It is important that every assistance be provided to the Tribunal on these issues, to ensure that the correct result is achieved. That would be best addressed by a combination of written and oral submissions as contemplated by the original order of the registrar."

(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first -

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken any such submissions into account.

(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

1. In applying the guiding principle to my discretion under s50(2), I have come to the conclusion that it is not necessary to have a hearing to hear the parties' oral submissions on the Application. The applicant and third respondent do not seek such a hearing and in such a case I find that it would not be appropriate to expose those parties to the expense of a hearing. I have also concluded that an oral hearing would be prolonged, not less than 1 day given the volume of the documentation involved some of which may not be especially relevant. As a result I have come to the conclusion that to have an oral hearing on the Application would most probably result in an outcome which is no less just than a hearing based on the submissions and documents lodged with NCAT, and most probably not quick and definitely not cheap. I will make an order dispensing with a hearing on the Application pursuant to s50(2) of the NCAT Act.
2. It is submitted that the first respondent is a cooperative established under the Co-operatives National Law (NSW). The first respondent states that NCAT has no jurisdiction to determine matters arising under the Co-operatives National Law (NSW). Reference is also made to the Co-operatives (Adoption of National Law) Act 2012. Moreover, it is submitted that the first respondent is not an owners corporation within the meaning of the Strata Schemes Management Act 2015 ('SSMA') and that the Tribunal has no jurisdiction to hear and determine an application in respect of the constitution of a board of a co-operative established under the Cooperatives (Adoption of National Law) Act 2012. The first respondent refers to and relies on the third respondent's submissions.
3. The third respondent, Strata + Ltd joins in the application and has made submissions.
4. The third respondent refers to Part 3 of Schedule 4 of the NCAT Act which relates to the Consumer and Commercial Division of the Tribunal. Part 3 of Schedule 4 to the NCAT Act states that the functions of the Tribunal relate to specified items of legislation that are allocated to the Consumer and Commercial division.
5. The functions of the Tribunal in relation to the SSMA are allocated to the Consumer and Commercial division.
6. These submissions state that, described broadly, the co-operative law in NSW is made up of four pieces of legislation, namely:

(1) the Co-operatives (Adoption of National Law) Act 2012;

(2) The Co-operative National Law;

(3) The Co-operative National Regulations; and

(4) The Co-operative Regulations 2020.

1. The third respondent points out that these pieces of legislation are not referred to in Part 3 of Schedule 4 of the NCAT Act. It is also pointed out that the Strata Schemes Development Act 2015 is not referred to in Part 3 of schedule 4 of the NCAT Act.
2. The third respondent's primary submission is that the Tribunal has no jurisdiction to hear and determine any application brought that would have the effect of restraining a Co-operative established under and governed by the Co-operatives Law. Further that the Tribunal has no jurisdiction to hear and determine an application requiring a building management committee established under the Strata Schemes Development Act to hold a meeting and to take certain steps to appoint certain purpose persons.
3. It is also submitted that in order to have the power to decide a matter, NCAT requires enabling legislation that confers order making power expressly or impliedly on the Tribunal.
4. The third respondent's submission is that the applicant relies upon s229 of the SSMA. The third respondent submits that reference to s229 must be understood to refer to the words of s229 which commence with:

"The Tribunal may, in any proceedings before it under this Act, make any one or more of the following orders or other decisions."

1. In submissions dated 5 September 2024 the applicant refers to the definition of an interested person in s226 of the SSMA. I find that s226 must be understood to identify the range of persons who will be entitled to commence proceedings in the Tribunal. I find that s226 does not address persons who may be joined as parties to proceedings in the Tribunal. Sections 226(1) and (2) state so far as is relevant:

"for the purpose of making an application to the Tribunal"

1. In that regard I reject the applicant's submission [4] of its 5 September submission that under s226(1) and (2) all of the respondents are interested parties. They are not because they have not made an application.
2. Reference is also made to s232 of the SSMA which confers jurisdiction on the Tribunal. That section states:

The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following -

(a) the operation, administration or management of a strata scheme under this Act,

(b) an agreement authorised or required to be entered into under this Act,

(c) an agreement appointing a strata managing agent or a building manager,

(d) an agreement between the owners corporation and an owner, mortgagee or covenant chargee of a lot in a strata scheme that relates to the scheme or a matter arising under the scheme,

(e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,

(f) an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act.

1. Reference is also made to s232(7) of the SSMA which states:

This section does not apply to a complaint or dispute relating to an agreement that is not an agreement entered into under this Act, or the exercise of, or failure to exercise, a function conferred or imposed by or under any other Act, if another Act confers jurisdiction on another court or tribunal with respect to the subject-matter of the complaint or dispute and the Tribunal has no jurisdiction under a law (other than this Act) with respect to that subject-matter.

1. Before addressing the submissions that have been made regarding s232(7) of the SSMA I propose considering s232 of the SSMA. The Introductory note to Part 12 of the SSMA is a useful statement regarding the dispute resolution jurisdiction conferred on the Tribunal by the SSMA. It states:

This Part gives power to the Tribunal to make orders to settle disputes about certain matters relating to the operation and management of a strata scheme. It also contains general provisions about the powers of the Tribunal and some other order-making powers of the Tribunal.

1. I find that it relevant to note that Introductory note emphasizes that Part 12 confers power or jurisdiction on NCAT to make orders relating to the operation and management of a strata scheme.
2. Division 2 of Part 12 deals with Alternative dispute resolution by Secretary which is not relevant to the Application. Division 3 of Part 12 deals with Procedures for applications to Tribunal. Division 4 deals with Orders that may be made by Tribunal. It is this Division which contains s232 which has been set out above. I find that it is Division 4 of the SSMA which confers jurisdiction on the Tribunal. In Vickery v The Owners - Strata Plan No 80412 [2020] NSWCA 284 Basten JA identified the source of jurisdiction for the Tribunal in relation to strata disputes as emanating from ss 28, 29 and Sch 4, cl 3(1)of the NCAT Act [4 - 5]. At [6] his Honour stated:

"To the extent that s 29(1) of the Tribunal Act picks up the provisions of other legislation enabling the Tribunal to make decisions or exercise functions, the relevant source of jurisdiction for present purposes is s 232 of the Strata Schemes Management Act, which, so far as relevant, provides:"

"Section 232 of the Strata Schemes Management Act, relevantly set out at [6] above, confers functions on the Tribunal. It is expressed in broad terms. Leaving to one side the reference to "an order to settle", that which may be settled is a "complaint or dispute" about six categories of matter,"

1. I find that the order making power of NCAT will apply on an application made by an interested person, which the applicant is, to make an order to settle a complaint or dispute about any of the matters, or categories of dispute described in (a) to (f) of s232(1).
2. Having regard to the orders sought by the applicant I propose to consider each order sought to ascertain whether it refers to or suggests a complaint or dispute which falls within one or more of the six categories referred to in s232(1).
3. First, the applicant has sought this order:

"Within 30 days of the date of the order the first respondent convene a General Meeting to elect a board of directors from qualified nominees, but not including any of the 2023 directors identified in an affidavit dated 8 August 2024."

1. First, I find that the order sought concerns an entity incorporated under the Co-operatives National Law (NSW). Secondly, the order relates to the internal management or organisation of the first respondent. Based on these findings I find that the complaint or dispute raised by the applicant as suggested or indicated by the orders sought does not come within any one of the categories of matter referred to in s232(1)(a) to (f) of the SSMA. As a result I find that NCAT does not have the jurisdiction to hear the application for the order sought in [1] of the Final Orders referred to in the Strata application which commenced these proceedings.
2. Secondly, the applicant has sought this order:

"The third respondent do all things necessary to facilitate, manage and give effect to the order in the preceding paragraph."

1. I have found that NCAT does not have the jurisdiction to hear the application for the order referred to above. In those circumstances I find that a dispute between the applicant and the third respondent regarding a category of matter which the Tribunal has no jurisdiction over will also be outside the category of matters referred to in s232(1)(a) to (f) of the SSMA. As a result I find that NCAT does not have the jurisdiction to hear the application for the order sought in [2] of the Final Orders referred to in the Strata application which commenced these proceedings.
2. Thirdly the applicant has sought this order:

"No later than the date of the General Meeting referred to above + 3 months, the board of directors of the first respondent convene a general meeting to appoint a strata managing agent and to conduct any other business thought appropriate."

1. I have found that the first respondent an entity incorporated under the Co-operatives National Law (NSW). I find that order [3] sought by the applicant also relates to the internal management of the first respondent. I find that to the extent that the order sought reflects a complaint or dispute between the applicant and the first respondent, the complaint or dispute does not come within any one of the categories of matter referred to in s232(1)(a) to (f) of the SSMA. As a result I find that NCAT does not have the jurisdiction to hear the application for the order sought in [3] of the Final Orders referred to in the Strata application which commenced these proceedings.
2. Fourthly, the applicant has sought this order:

"No later than the date of the General Meeting referred to above + 3 months the board of directors of the first respondent convene a general meeting to appoint a facilities manager or building manager and to conduct any other business thought appropriate."

1. For the same reasons as I have set out in connection with orders 1 and 3 sought by the applicant, I find that NCAT does not have the jurisdiction to hear the application for the order sought in [4] of the Final Orders referred to in the Strata application which commenced these proceedings.
2. Fifthly, the applicant has sought this order:

"No later than the date of the General Meeting referred to above + 3 months the second respondent convene to appoint a facilities manager or building manager and to conduct any other business thought appropriate."

1. The first respondent's submissions of 18 September helpfully point out that on 6 September 2024 the applicant abandoned its application against the third respondent. The applicant's submissions also confirm that to be the case.
2. Having regard to the reasons referred to above, I find that the Tribunal does not possess the jurisdiction to hear the application for orders 1 - 4 referred to in the Strata application which commenced these proceedings.
3. As a result I will dismiss these proceedings pursuant to s55(1)(b) of the NCAT Act on the basis that because the Tribunal lacks the jurisdiction to hear the application for orders 1 - 4, the proceedings are "misconceived or lacking in substance."

1. In its submissions filed for the hearing on 6 September 2024 the applicant foreshadowed an application to file an amended application. An application to amend should be made formally in a Miscellaneous application that can be listed for hearing and appropriate directions. This has not been done. In any event the nature of the foreshadowed amendments in the form of the amended orders sought appear to suffer the same deficiencies as have been found in the present Strata application which I have stated will be dismissed. On that basis I do not consider it appropriate to consider the application to amend in any further detail. I would observe that there is nothing to prevent that applicant to file new proceedings which are drafted in a way that will come within the power conferred on the Tribunal in Part 12, Division 4 of the SSMA.

1. In the event that a party is minded to make an application for costs, such application must be lodged in the Tribunal and served on/given to the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.
2. The costs respondent will have 14 days after the date it receives the application to lodge in the Tribunal and serve on/give to the costs applicant its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.
3. The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.
4. Subject to the parties' submissions, the Tribunal will determine any costs application made on the basis of the submissions and papers filed in the Tribunal.

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.