The Owners – Strata Plan No. 12185 v Brown

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

Barefoot Timber Pty Ltd v Wright [2024] NSWCATAP 252

Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734

Bruce v Knight [2021] NSWCATAP 224

BZE v NSW Public Guardian [2015] NSWCATAP 64

Capcelea v The Owners - Strata Plan No 48887 [2019] NSWCATCD 27

Collins v Urban [2014] NSWCATAP 17

Donohoe v Albulario [2025] NSWSC 9

Dranichnikov v Minister for Immigration and Migration Affairs [2003] HCA 26

FVA v Commissioner for Police, NSW Police Force [2024] NSWCATAP 127

Gelder v The Owners - Strata Plan No 38308 [2020] NSWCATAP 227

Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297)

House v The King [1936] HCA 40; (1936) 55 CLR 499

Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325

John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69

Khan v Kang [2014] NSWCATAP 48

Knight v The Owners- Strata Plan 208 [2022] NSWCATCD 170

Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 23

Raslan v Pan [2015] NSWCATAP 12

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

The Owners - Strata Plan No 12289 v Donaldson [2019] NSWCATAP 213

The Owners- Strata Plan No 69140 v Drewe [2017] NSWSC 845

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

1. It is relevant to consider whether the alleged breach of procedural fairness would have made any difference to the outcome of the case: Stead v State Government Insurance Commission (2008) 161 CLR 141 at 145; [1986] HCA 54 (Stead). Materiality is relevant and for the question of law to arise "on" the appeal, any error on that question of law must be capable of affecting the outcome of the appeal (Barefoot Timber Pty Ltd v Wright [2024] NSWCATAP 252 at [30]- [31])
2. The respondent denies that there was a breach of procedural fairness and contends that the engineer's report was attached to her statement in response dated 20 May 2024, which was served by email on 21 May 2024. It is further submitted that this report was in reply to issues raised by the Owners Corporation about the structural issues of affixing the condensers to the west wall and whether there would be problems.
3. The difficulty with this ground is that there is no evidence from the Owners Corporation before us to support the Owners Corporation's contention and, understandably, the respondent did not file and serve any evidence responding to this issue in the absence of evidence from the Owners Corporation. This means that the Tribunal is now left with a contentious debate about the service of a document that cannot properly resolved by oral submissions or untested statements made at the appeal hearing.
4. The absence of evidence was compounded by the fact earlier referred to, namely, that the Owners Corporation has not provided the Tribunal with a transcript that is comprehensible and comprehensive, particularly on the engineer's report.
5. The transcript, as imperfect as it is, includes the submissions made by Ms Crittenden at the hearing as recorded on page 20 of the transcript, where she is discussing the issues that had been raised by the Owners Corporation as follows:

36. In determining what the owners corporation or particular owners had in mind at the relevant time as the grounds for their decision, there may be the evidence in the minutes of the relevant meeting if they record debate and reasons, but such a record raises questions as to adequacy and completeness if it is anything less than an approved transcript of relevant deliberations prior to the taking of the decision.

37. In addition to that source, individual owners can provide evidence of their reasons and, on the view expressed in Milman v Owners SP 1389 [2005] NSWCTTT 196, should do so, in order to assist in the type of inquiry in these proceedings.

(2020) 103 NSWLR 479

(1936) 55 CLR 499

(2010) 241 CLR 390

(2003) 214 CLR 1

(2017) 95 NSWLR 597

(2008) 161 CLR 141