The Owners - Strata Plan No 31244 v Lyon - [2021] NSWCATAP 184 - NSWCATAP 2021 case summary

NCAT Appeal Panel|2021-06-17

REASONS FOR DECISION

This appeal was filed approximately three and a half months out of time and the appellant therefore required an extension of time in which to appeal. If time to appeal were not granted the result is that there is no appeal.
At the conclusion of the appeal we announced our decision that we would not extent time to appeal and would provide written reasons for that decision subsequently. These are those reasons.

Background

The respondents own Lot 12 in the appellant's strata scheme situated at Bexley, NSW.
A dispute arose between the parties as to which of them had the responsibility to effect repairs in relation to water leaking from the bathroom floor and wall of Lot 12 into the lots underneath.

The Tribunal's Decision

One issue decided by the Tribunal was whether there had been work done to the bathroom in Lot 12 after the registration of the strata plan. That was because of the terms of a common property rights memorandum passed and registered in relation to this strata plan.
The Tribunal described that common property rights memorandum as follows: "Subclause 5 (c) of the common property rights memorandum under 'owner corporation's responsibilities' states that the owners corporation is responsible for the repair and maintenance of 'original floor tiles and associated waterproofing affixed to the common property floors at the time of registration of the strata plan'. Subclause 5 (a) under 'Owners responsibilities' states the Lot owner is responsible for 'floor tiles and any associated waterproofing affixed by an owner after the registration of the strata plan'."
In succinct and accurate terms the Tribunal reasoned as follows, with its decision on the issue at hand set out at [35]: "31. Under s .106 of the SSMA, it is the duty of the owners corporation to maintain and keep in a state of good repair the common property. The legal authorities dealing with that duty are well-established and were discussed in authorities such as Lonergan v The Owners-Strata Plan No 16519 [2020] NSWCATAP 177. 32. Obligations to repair property can be modified by the passing and registration of a common property rights memorandum under s 107 of the SSMA; or a common property rights by-law under s 142 of the SSMA. 33. I am satisfied on the evidence that there is a water leak coming from common property. The invoice of AGM Plumbing supports this, stating that the plumber suspects the water leak 'is due to a lack of water proofing under the bathroom floor walls and around the tiles'. The report of Kai Constructions Group dated 6 July 2020 also supports this finding, stating 'The bathroom has been constructed using vinyl waterproofing which is now damaged and no longer acts as a protection for the property and floorboard structure. The bathroom waterproofing in this property is original and the construction methodology is consistent with a property of this age. It is likely the waterproofing has bene damaged and as a result the water are (sic) able to leak through the cracks into the floorboards and the property below'. 34. The Tribunal is also satisfied that the bathroom is old and in poor condition and was in poor condition prior to early 2019. 35. The Tribunal is not satisfied the responsibility for repairing waterproofing within the floor and walls adjacent to the bath/shower is the responsibility of the Lot owner under the common property rights memorandum. There is insufficient evidence to find that the floor tiles and associated waterproofing affixed to common property floors is not original, other than the application by the Lot owner of silicone sealant. The age and poor condition of the bathroom shown in the March 2019 photographs is consistent with the tiles and bathroom being in original condition, other than the application of silicone sealant to the bathroom and the removal of the water heater."
The Tribunal found in favour of the respondents and ordered the appellant to engage a suitably licensed builder or building consultant to inspect the floor and walls beneath and adjacent to the shower/bath in Lot 12. The builder or building consultant was to prepare a report setting out the defects within the floor and walls that required repair to prevent water ingress into the lots underneath and so that the internal floor and walls are reasonably waterproof. The report was to set out a scope of works to repair the said defects. The respondents were to give reasonable access to the builder or building consultant engaged by the appellant and the appellant was to provide a copy of such a report to the respondents within 5 days of receipt of the report.

The Appeal

The appellant's Notice of Appeal said that its grounds of appeal were: "The Tribunal were (sic) not provided the full documentation by the previous strata managing agent during the directions hearing. Evidence from previous owner of Lot 12, who still currently owns within the scheme shows that at time of sale the bathroom had not been renovated, Since the sale the bathroom has been renovated by the new owners and subject to this evidence the owners corporation are not liable for any repairs."
The Notice of Appeal also stated that the appellant sought leave to appeal on the following basis: "The decision made by the Tribunal member was done without the supporting documentation of the previous owners statement. The previous owner of the unit has provided evidence at the time of sale to the new owner, the bathroom was of its original state and the renovation of Lot 12 has taking place after the sale without prior approval of the owners corporation. Therefore the owners corporation are requesting the Tribunal to reverse the orders made and make the owner liable for their own repairs."
In its written submissions on these points the appellant said: "Our office has received instructions from the Owners Corporation that the reason for appealing the original decision made on the 2nd of November 2020 for file number SC 20/24373, is due to the insufficient evidence that was originally filed by the previous strata managing agent (Whittles Strata Management). Attached to this document (titled annexure A) is a copy of the Steve Bennett's Plumbing Service invoice dated 03/07/2012. This invoice confirms the removal of the tiles from walls around the bath; patched wall and waterproofed walls; supply, install and lay new tiles around the bath and in front of bath was previously paid for by the previous owner of the unit Cliff Willard, a copy of his email confirming this payment has been attached (titled annexure B).
In relation to the reasons for not filing its appeal within time the appellant's Notice of Appeal said that the delay was caused by the change of strata managing agent.
In its written submissions on this point the appellant said: "With regards to the delay in lodging the appeal application for the matter of SC 20/24373. Our office contacts (sic) the tribunal on the 23rd of November 2020, by way of email seeking an extension of time as there was a change in strata managing agents and our office was not due to take over until the 25th November 2020. Our office did not receive a reply from the tribunal until we followed up on the 5th February 2021. To which we were advised that the Member Sarginson did send a reply on the 25th of November 2021 to Whittles Strata Management (prior agent) and this information was never forwarded on to our office."

Decision

The relevant principles we are to apply to the appellant's application for an extension of time are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18]-[22]. These include the principle that time limits should generally be strictly enforced, with extensions granted where the interests of justice (which applies to all parties equally) require it. it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice.
Parties are directed to Jackson in the Tribunal's NCAT Guideline 1, Internal Appeals, November 2019, published on the Tribunal's website, and parties are advised to read that document in a statement to that effect on the top of p.1 of the Notice of Appeal.
In that Guideline parties are advised: "38. If a Notice of Appeal is lodged outside the relevant time period, the appellant must request an extension of time otherwise the appeal may be dismissed. An application for an extension of time should be made in the Notice of Appeal form. The principles relevant to granting an extension of time were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18] to [22]. 39. … 40. If an extension of time is requested but is not granted the appeal will be dismissed because it is out of time. This may be decided before the appeal is heard or it may be left to be decided at the final hearing of the appeal."
Jackson says that generally, in an application for an extension of time to appeal, an Appeal Panel will be required to consider: 1. the length of the delay; 2. the reason for the delay; 3. the appellant's prospects of success; and 4. the extent of any prejudice suffered by the respondent (to the appeal).
In this case the delay is significant. The time to file the Notice of Appeal was 28 days, but that document was not filed for another three and a half months.
There is no reason given for the delay between the date the Tribunal's decision was received (2 November 2020) and the first email from Foreshews to the Tribunal dated 23 November 2020. The appellant did not require a strata managing agent to file a Notice of Appeal, and why it did not file a Notice of Appeal during this time is unexplained.
The email from Foreshews dated 23 November 2020 sought an extension of time to file the Notice of Appeal, but this was not the correct way to seek that extension. The correct way is as set out in paragraph 38 of the Guideline (see [22] above).
In any event, the Tribunal replied to that email directly to the appellant on 25 November 2021 as was appropriate because, at that time, no leave had been granted for Foreshews to represent the appellant in proceedings in the Tribunal. There was no response to that email by the Owners Corporation.
It is clear from Foreshew's subsequent email of 5 February 2021 that the appellant had in its possession the new evidence upon which it wished to rely, but there is no explanation for why it took until 19 March 2021, some six weeks later, to file the Notice of Appeal.
In light of those facts we do not consider there has been an adequate explanation for the delay in filing the Notice of Appeal.
As for the appellant's prospects of success on the appeal, they are negligible.
An appeal in the Tribunal is not a second hearing, a point made in the Guideline. On an appeal an appellant has to demonstrate some type of error in the Tribunal's decision. The function of grounds of appeal is to identify the error. Errors may involve questions of law or some other ground.
A party may appeal as of right on any question of law, or with the leave of the Appeal Panel, on any other ground - s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act").
No error of law is relied on in this appeal.
What the appellant does rely on is new evidence. Therefore, it must seek leave to appeal on this ground, and to so do so it must show that it may have suffered a substantial miscarriage of justice because the new evidence is significant new evidence which was not reasonably available at the time of the hearing before the Tribunal - cl 12 of Schedule 4 of the NCAT Act.
The test of whether evidence was reasonably available to the appellant at the time of the hearing (29 October 2020) is not considered by reference to any subjective explanation from the appellant but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence - Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23].
The appellant has offered no evidence to prove that the new evidence sought to be relied on could not reasonably have been obtained for the hearing on 29 October 2020.
It follows that cl 12 is not satisfied and the new evidence would not be admitted on any appeal.
As this was the only appeal ground, it would inevitably have failed because the appellant failed to satisfy the requirements of cl 12. In those circumstances the appellant's prospects of success on the appeal (if an extension of time were granted) were negligible.
The final matter to consider on this application to extend time is the prejudice to the respondents. No particular prejudice was claimed but there is always prejudice of a more generalised type resulting from delays in the finalisation of cases, sometimes referred to as presumptive prejudice.
In summary, the appellant's explanation for the delay is inadequate, the prospects of success of the appeal are negligible, the delay is significant and there is presumptive prejudice to the respondents.
In all of those circumstances we were of the opinion that the appellant had failed to establish that the justice of the case required that an extension of time should be granted.

Orders

On 17 June 2021 we made the following order: 1. Application to extend time to appeal is dismissed.

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: 24 June 2021

The Owners - Strata Plan No 31244 v Lyon

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Judgment (8 paragraphs)

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