The Owners - Strata Plan No 55468 v Silberstein

Civil and Administrative Tribunal Act 2013 (NSW), ss 60, 80, 81, Sch 4, cl 12

Civil and Administrative Tribunal Rules 2014 (NSW), rr 38, 38A

Environmental Planning and Assessment Act 1979 (NSW), ss 1.4, 6.1, 6.3, 6.4

Strata Schemes Management Act 2015 (NSW), ss 9, 11, 37, 45, 106, 229, 232, 238, 241, 260

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

Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50

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

Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24

Collins v Urban [2014] NSWCATAP 17

Cooper v The Owners-Strata Plan No 58068 (2020) 103 NSWLR 160; [2020] NSWCA 250

Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147

EB 9 & 10 Pty Ltd v The Owners Strata Plan 934 (2018) 98 NSWLR 889; [2018] NSWCA 288

Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16

Impala Kitchens Pty Ltd v O'Donoghue [2025] NSWCATAP 49

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

Maclean v Brylewski [2023] NSWCA 173

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

The Owners-Strata Plan No 37762 v Pham [2006] NSWSC 1287

The Owners-Strata Plan 62713 v Liberant [2022] NSWCATAP 80

The Owners-Strata Plan No 74698 v Jacinta Investments Pty Ltd [2021] NSWCATAP 387

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

Vella v Mir (No 3) [2020] NSWCATAP 17

Vickery v The Owners Strata Plan 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284

Walsh v The Owners - Strata Plan No 10349 [2017] NSWCATAP 230

Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54

Yuen v Thom [2016] NSWCATAP 243

The Owners - Strata Plan No 55468 (First Appellant)

1. This is an internal appeal from the decision of the Tribunal constituted by Senior Member D Goldstein made on 8 November 2024 in the Consumer and Commercial Division (the 8 November 2024 decision) in proceedings under the Strata Schemes Management Act 2015 (NSW) (SSM Act or SSMA) involving strata scheme 55468 between a lot owner, Jessica Silberstein (Ms Silberstein), and seven respondents including the owners corporation, The Owners - Strata Plan No 55468 (OSP55468) and a member of the strata committee of OSP55468, Michael Adamo (Mr Adamo).
2. The appeal by OSP55468 is against the order of the Tribunal that it pay Ms Silberstein the sums of $283,266.55 for temporary accommodation costs (the temporary accommodation costs) and $10,000.00 for loss of amenity damages (the loss of amenity damages) as damages for its breach of s 106(1) of the SSM Act.
3. The appeal by Mr Adamo is against the order of the Tribunal that he is removed from the strata committee of OSP55468 (the removal order) and is restrained from acting in the position of an office holder of OSP55468 or as a strata committee member of OSP55468 for a period of not less than one year from 8 November 2024 (the restraint order).
4. In determining the appeal, we have set out our approach to the conduct of the appeal, the key statutory provisions, the applicable legal principles, the factual background (which has been derived from information on the Fair Trading NSW website and undisputed factual findings in the 8 November 2024 decision), and the history of the proceedings at first instance and on appeal. We have then considered the issues arising on the appeal before setting out our conclusions and orders.
5. A threshold issue is whether the appeal is on one or more questions of law within s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). We are satisfied that the appeal is on three questions of law and the appeal is as of right on these questions.

(1) the appeal by OSP55468 should be dismissed;

(2) leave to appeal by Mr Adamo in respect of the removal order should be refused;

(3) the appeal by Mr Adamo in respect the restraint order should be allowed, the restraint order should be set aside and consequential orders made in its place;

(4) OSP55468 should pay 80% of Ms Silberstein's costs of the appeal on the ordinary basis and there should be no order as to the costs of the appeal by Mr Adamo, subject to the right of the parties to make an application to vary one or both of these cost orders.

1. In conducting the appeal, we have followed the following approach:

(1) we have decided the threshold question of whether the appeal is on one or more questions of law;

(2) to the extent that the appeal is one or more questions of law, we have decided whether the Tribunal either answered that question or proceeded on an assumption concerning that answer, whether its answer or assumption was correct or incorrect, and whether that answer or assumption was material to the outcome, in the sense that it could have affected the outcome: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 (Bimson, Roads & Maritime) at [41] (Beech-Jones J) citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 353 (Mason CJ); cited with approval together with other authorities in Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54 at [53]- [54];

(3) to the extent necessary, we have decided whether leave to appeal should be granted in accordance with the principles in Collins v Urban [2014] NSWCATAP 17 (Collins) at [76]-[84], and if so whether any relief should be granted in respect of any material error;

(4) we have set out our conclusions;

(5) we have then decided the costs of the appeal;

(6) we have conducted the appeal as a rehearing on the materials before the Tribunal to determine whether the orders that are the subject of the appeal are the result of some legal, factual or discretionary error: Yuen v Thom [2016] NSWCATAP 243 at - .

1. Part 6 Division 2 (ss 80-81) contains provisions dealing with internal appeals. An appeal against an internally appealable decision may be made in the case of any kind of decision (including an ancillary decision) other than an interlocutory decision as of right "on any question of law", or with the leave of the Appeal Panel, on any other grounds: s 80(1) and (2)(b) of the NCAT Act.
2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are where it is satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was not fair and equitable, or the decision of the Tribunal under appeal was against the weight of evidence, or significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with): cl 12(1)(a), (b) and (c) of Sch 4 of the NCAT Act.
3. The Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to any one or more of orders that the appeal is to be allowed or dismissed, and the decision under appeal is to be set aside and for another decision to be substituted for it: s 81(1)(a) and (d) of the NCAT Act.

1. Part 2 Division 2 (ss 9-13) contains provisions dealing with the management of strata schemes. Section 9 deals with the management of strata schemes by the owners corporation, and relevantly provides:

9 Owners corporation responsible for management of strata scheme

(1) The owners corporation for a strata scheme has the principal responsibility for the management of the scheme.

(2) The owners corporation has, for the benefit of the owners of lots in the strata scheme -

(a) the management and control of the use of the common property of the strata scheme, and

(b) the administration of the strata scheme.

1. Section 11 deals with other management bodies and persons who assist the owners corporation, and relevantly provides:

11 Other management bodies and persons who assist the owners corporation

The owners corporation for a strata scheme may be assisted in the carrying out of its management functions under this Act by any one or more of the following -

(a) the strata committee of the owners corporation established in accordance with this Act,

...

1. Part 3 Division 2 (ss 36-38) contains provisions dealing with the functions of a strata committee. Section 37 deals with the duty of the members of a strata committee, and provides:

37 Duty of members of strata committee

It is the duty of each member of a strata committee of an owners corporation to carry out his or her functions for the benefit, so far as practicable, of the owners corporation and with due care and diligence.

1. Part 2 Division 4 (ss 41-48) contains provisions dealing with officers. Section 45 deals with the vacation of office by officers, and relevantly provides:

45 Vacation of office by officer

(1) An officer of an owners corporation vacates office as an officer -

(a) if the person ceases to be a member of the strata committee, or

...

1. Part 6 Division 1 (ss 106-108) contains provisions dealing with the management of common property. Section 106 deals with the duty of an owners corporation to maintain and repair property, and relevantly provides:

106 Duty of owners corporation to maintain and repair property

(1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

...

(5) An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.

...

1. Part 12 Division 4 (ss 229-238) contains provisions dealing with the orders that may be made by the Tribunal. Section 229 deals with the general order-making power of the Tribunal, and provides:

229 General order-making power of Tribunal

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

(a) an order or decision that provides for any ancillary or consequential matter the Tribunal thinks appropriate,

(b) an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013.

1. Section 232 deals with orders to settle disputes or rectify complaints, and relevantly provides:

232 Orders to settle disputes or rectify complaints

(1) Orders relating to complaints and disputes 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,

...

(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,

1. Section 238 deals with orders relating to a strata committee and officers of the owners corporation, and provides:

238 Orders relating to strata committee and officers

(1) The Tribunal may, on its own motion or on application by an interested person, make any of the following orders -

(a) an order removing a person from a strata committee,

(b) an order prohibiting a strata committee from determining a specified matter and requiring the matter to be determined by resolution of the owners corporation,

(c) an order removing one or more of the officers of an owners corporation from office and from the strata committee.

(2) Without limiting the grounds on which the Tribunal may order the removal from office of a person, the Tribunal may remove a person if it is satisfied that the person has -

(a) failed to comply with this Act or the regulations or the by-laws of the strata scheme, or

(b) failed to exercise due care and diligence, or engaged in serious misconduct, while holding the office.

1. Part 12 Division 5 (ss 239-248) contains general provisions relating to the powers of the Tribunal and orders that may be made by the Tribunal. Section 241 deals with the power of the Tribunal to prohibit or direct the taking of specific actions, and provides:

241 Tribunal may prohibit or direct taking of specific actions

The Tribunal may order any person the subject of an application for an order to do or refrain from doing a specified act in relation to a strata scheme.

1. Part 14 (ss 256-276A) contains miscellaneous provisions. Section 260 deals with the personal liability of officers of owners corporations and others, and relevantly provides:

260 Personal liability of officers of owners corporations and others

(1) A matter or thing done or omitted to be done by any of the following persons, or a person acting under the direction of any of those persons, does not, if the matter or thing was done or omitted to be done in good faith for the purpose of executing functions as such a person under this or any other Act, subject any of the following persons or person so acting personally to any action, liability, claim or demand -

(a) an officer of an owners corporation,

(b) a member of a strata committee.

1. Part 1 (ss 1.1-1.8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) contains preliminary provisions. Section 1.4 contains definitions, and relevantly provides:

1.4 Definitions (cf previous s 4)

(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires -

...

building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993.

...

development consent means consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate.

...

1. Part 6 Division 6.1 (ss 6.1-6.2) contains preliminary provisions dealing with building and subdivision certification. Section 6.1 contains definitions, and relevantly provides:

6.1 Definitions: Part 6

In this Part -

...

new building includes an altered part of, or an extension to, an existing building.

...

1. Part 6 Division 6.2 (ss 6.3-6.5A) contains provisions dealing with certificates required under Part 6. Section 6.3 deals with work or activity that requires a certificate under Part 6, and relevantly provides:

6.3 Work or activity that requires certificate under this Part (cf previous s 109C)

(1) A person must not carry out any of the following work or activity without a certificate under this Part that is required by this Part for that work or activity -

...

(c) the occupation or use of a building (including a change of use),

...

1. Section 6.4 deals with the kinds of certificates under Part 6, and relevantly provides:

6.4 Kinds of certificates under this Part (cf previous s 109C)

There are the following kinds of certificates under this Part -

...

(c) occupation certificate - a certificate that authorises -

(i) the occupation and use of a new building in accordance with a development consent, or

(ii) a change of building use for an existing building in accordance with a development consent.

When issued, an occupation certificate is taken to be part of the development consent to which it relates.

Question of law within s 80(2)(b) of the NCAT Act

1. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique Commercial Group) at [25]-[40], the Appeal Panel considered the nature of a question of law within s 80(2)(b) of the NCAT Act.
2. The interpretation of, relevantly, a statute, is directed to the ascertainment of the statute's actual and true meaning. When the statute is properly construed, there is only one correct meaning. It is for this reason that the proper construction of a statute is a question of law: Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50 (Bianco Walling) at [66] (Flick, White and Perry JJ); cited with approval in Unique Commercial Group at [32(2)].
3. The constructive failure to exercise jurisdiction by failing to respond to substantial, clearly articulated arguments based on established facts raises a question of law: Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 (Alexandria Landfill) at [6], [20]-[22] (Basten JA); cited with approval in Unique Commercial Group at [32(4)].
4. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law: Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 (Hope) at 7; J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed); cited with approval in at [32(5)].

1. In Collins, the Appeal Panel at [76] stated that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where:

"... there was a 'significant possibility' or a 'chance which was fairly open' that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." (emphasis in original)

1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
2. In Collins, the Appeal Panel at [84] set out the general principles which govern the granting of leave to appeal. These general principles were recently summarised by the New South Wales Court of Appeal in Maclean v Brylewski [2023] NSWCA 173 (Maclean) at [24] (Ward P and Simpson AJA):

"[24] It is not disputed that leave to appeal is necessary. In determining whether leave to appeal should be granted, something more must be demonstrated than that the primary judge's decision was arguably wrong. What is ordinarily required to be demonstrated is that the matter involves a question of principle or of public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable. Moreover, where, as here, the decision the subject of the application for leave to appeal involves an exercise of discretion, what is required to be demonstrated is error in the House v The King sense." (citations omitted)

1. We note that Appeal Panels have taken a range of approaches to the interpretation and application of s 80(2)(b) and cl 12 of Sch 4 of the NCAT Act. In some cases, the reasons for leave to appeal within cl 12 were treated as the grounds, and in other cases, they were treated as hurdles for leave to appeal on the grounds already identified by the appellant in the notice of appeal: Impala Kitchens Pty Ltd v O'Donoghue [2025] NSWCATAP 49 (Impala Kitchens) at [67].

1. On 30 July 1997, strata scheme 55468, which is a partly commercial and partly residential building (the building), comprising 277 lots and common property at Sydney in New South Wales, was registered.
2. Since 24 January 2018, Ms Silberstein has been the owner of lot 132 known as unit 2202 being a penthouse apartment on levels 22 and 23 of the building with two balconies on each level (the lot or the unit) together with lots 140 and 141 being two car parking spaces in strata scheme 55468.
3. At all relevant times, the members of the strata committee of OSP55468 were Mr Adamo, Michael Hans Engelbert (Mr Engelbert), William Paul O'Brien (Mr O'Brien), and Terrance Matthew Gagen (Mr Gagen). Mr Adamo was the secretary of OSP55468.
4. At all relevant times, Strata Choice Pty Ltd (Strata Choice), and Hecker Australia Pty Ltd (Hecker), of which Darryl Hecker (Mr Hecker) was the principal, were the strata managing agent and the building manager respectively of OSP55468.
5. In February, October, November and December 2020, there was water ingress into the unit.
6. On 18 October 2020, Ms Silberstein signed a contract with P&S Design and Construction Pty Ltd for renovation works to the unit (the P&S renovation works). She and her family resided in the unit while the P&S renovation works were being carried out between 9 November 2020 and 21 March 2021.
7. On 13 November 2020, Luke Oldfield issued complying development certificate 190446-01 for internal renovations to the unit in accordance with the attached approved plans which depict proposed works to the ensuite, walk in robe and laundry on level 22 and the second bathroom, the fourth bedroom and adjoining walk in robe, the separate walk in robe and air conditioning area on level 23 (the 13 November 2020 CDC or the CDC).
8. Between 18 to 21 March 2021, there was water ingress into the unit. Ms Silberstein and her family left the unit on 21 March 2021 because water ingress made the unit uninhabitable.
9. From 21 March 2021 to 6 April 2021, Ms Silberstein and her family resided at Meriton Suites World Tower with her insurer paying the costs of this accommodation.
10. On 31 March 2021, Ms Silberstein entered into a six-month lease at 903/130 Elizabeth Street Sydney where she resided with her family from 7 April 2021 to 25 September 2021.

(1) the report of SH Engineering Consultants which confirmed the inadequacy of the stormwater surface drainage and overflow provisions of the balcony area of the unit and recommended remedial works;

(2) the report of Access Property Services Pty Ltd which recommended remedial works to the balconies of the unit.

1. On 24 June 2021, Mr Adamo sent an email to Mr Hecker in which he expressed the opinion that OSP55468 should not pay anything for relocation or accommodation expenses of Ms Silberstein (the 24 June 2021 Adamo email).
2. From 25 September 2021 to 10 July 2023, Ms Silberstein and her family resided at the property at [address omitted] St Ives (the St Ives property). From 9 September 2021 to 8 March 2022, Ms Silberstein leased the St Ives property at a rental of $4,100.00 per fortnight. On 29 March 2022, GECB Pty limited (GECB), of which Ms Silberstein is the sole director and shareholder, purchased the St Ives property for a consideration of $4,725,400.00. GECB leased the St Ives property to Ms Silberstein for a rental of $4,100.00 per fortnight.
3. On 10 July 2023, Ms Silberstein and her family resumed their residence at the unit after completion of remedial works on 20 June 2023.

The history of the proceedings at first instance

1. On 4 February 2022, Ms Silberstein as the applicant commenced proceedings SC 22/05083 (which were subsequently renumbered 2022/00442866) in the Consumer and Commercial Division against OSP55468, Messrs Adamo, Engelbert, O'Brien and Gagen, Strata Choice, and Hecker as the first to seventh respondents respectively by lodging a strata and community schemes application.
2. In her Further Amended Points of Claim Ms Silberstein sought the following relief against the parties:

(1) as against OSP55468:

(a) orders for the rectification of building defects in the common property;

(b) orders for rectification of work or compensation for damage to the lot property which has been caused by the building defects in the common property;

(c) damages arising out of OSP55468's breaches of s 106 of the SSMA;

(d) costs arising out of the adverse health consequences for herself and her family caused by OSP55468's breaches of the SSMA;

(e) costs of temporary accommodation;

(f) damages arising from loss of amenity in the lot property; and

(g) aggravated damages;

(2) as against Messrs Adamo, Engelbert, O'Brien and Gagen:

(a) damages arising from OSP55468's breach of s 106 of the SSMA, including damages arising from adverse health consequences and the costs of temporary accommodation;

(b) damages for negligence under the general law;

(c) damages for loss of amenity in the lot property;

(d) aggravated damages;

(e) an order removing them from the strata committee pursuant to s 238 of the SSMA; and

(f) an order restraining them from acting as an office holder of a strata committee for not less than five years;

(3) as against Strata Choice and Hecker:

(a) damages arising from OSP55468's breach of s 106 of the SSM Act, including damages arising from adverse health consequences and the costs of temporary accommodation;

(b) damages for negligence under the general law;

(c) damages for loss of amenity in the lot property;

(d) aggravated damages.

1. On 6, 7 and 8 June 2023, the hearing took place.
2. On 8 November 2024, the Tribunal made the 8 November 2024 decision relevantly comprising the following orders (the 8 November 2024 orders), and reasons (the 8 November 2024 reasons or Reasons):

(1) a work order against OSP55468 ([1]);

(2) procedural orders regarding the application of Ms Silberstein to reopen her case ([2]-[3]);

(3) a money order for $316,128.43 against OSP55468 ([4]);

(4) orders dismissing the claims against Strata Choice and Hecker ([5]-[6]);

(5) an order dismissing the claims against Messrs Adamo, Engelbert, O'Brien and Gagen for damages for negligence under the general law ([7]-[8]);

(6) an order against Mr Adamo for his removal from the strata committee of OSP55468 and for his restraint from acting in the position of an office holder of OSP55468 or as a strata committee member of OSP55468 for a period of not less than one year from 8 November 2024 ([9]);

(7) orders dismissing the claims against Messrs O'Brien and Gagen for their removal from the strata committee of OSP55468 ([10]-[11]);

(8) procedural orders regarding the costs of the proceedings ([12]-[15]).

1. On 27 November 2024, the Tribunal corrected the 8 November 2024 reasons at [494] and [495] with respect to the time specified in the procedural orders regarding the costs of the proceedings.

1. As the appeal does not challenge orders 1 to 3, 5 to 7 and 10 to 15 of the 8 November 2024 orders, we have not summarised the 8 November 2024 reasons on these issues. Further, as the challenge to order 4 of the 8 November 2024 orders is limited to the award of damages for temporary accommodation costs ($283,266.55) and loss of amenity ($10,000.00), we have not summarised the 8 November 2024 reasons on the other component of this order, being damages for the cost of internal rectification works ($22,861.88).
2. In the 8 November 2024 reasons, the Tribunal relevantly:

(1) rejected OSP55468's argument that Ms Silberstein lost her entitlement to be compensated for temporary accommodation costs and associated moving, storage and transportation costs because she was committing an unlawful activity by continuing to reside in the unit during the P&S renovation works ([178]-[185]) including:

"184 I reject the submissions made on behalf of the first to fifth respondents on this point. First, as I have stated I have inferred that an occupation certificate has been issued for the apartment building the subject of Strata Plan 55468. Secondly and more importantly, I do not accept that the combined effect of s 6.3 of the EP&A Act and Complying Development Certificate - 190446 was that the owner would be contravening the EP&A if she and her family lived in that part of the unit not the subject of building work, as it was renovated. I accept that after the renovation had been completed an occupation certificate was required. I do not interpret s6.3(c) of the EP&A Act on its plain terms as prohibiting the occupation of a building while it is the course of renovation. I find that the owner's counsel's submissions in Reply at [15] - [20] are to be preferred. There was no unlawful conduct by the owner in residing in those parts of her unit not the subject of renovation work."

(2) made a finding as to the P&S renovation works carried out up to March 2021 ([189]):

"189 ... the builder prepared level 22 for occupation by the owner and her family while renovation work was being carried out on level 23. The plan was when the level 23 work was completed, work would be undertaken on level 22 with the owner and her family residing on level 23. This method of work commenced in November 2021 but by March 2021 most of the work on level 23 was completed. ... in March 2021 the lift from level 21 to 22 had not been installed because it had been delayed due to Covid related supply issues. ..."

(3) rejected OSP55468's submissions that Ms Silberstein is not entitled to claim/recover the amounts that were paid by her to GECB for accommodation at the St Ives property as damages under s 106(5) of the SSM Act because it was not a foreseeable loss by reason that the purchase of the St Ives property by GEBC was an intervening act changing the character of the rent paid ([200]-[210]):

"...

204 There are a number of reasons why counsel for the first to fifth respondents submits that the owner is not entitled to claim/recover the amounts that were paid by her to GECB for accommodation at the St Ives property as damages under s106(5) of the SSMA. They are:

(1) There is some suggestion that GEBC is a trustee of a trust said to be the Silbokids Family Trust and that there are no details of the trust or its beneficiaries in evidence;

(2) It is not clear whether the owner will receive a benefit from the rent that she has paid to GEBC;

(3) The owner cannot purchase accommodation and claim it as foreseeable loss;

(4) The St Ives accommodation was not temporary accommodation;

(5) The fact that the owner wanted everyone to believe that the rent being paid in relation to the St Ives accommodation as if it were temporary accommodation, was a 'contrivance' that the rent was a loss to be claimed against the OC which is explicable by the fact that the owner kept these facts hidden in her evidence before the hearing; and

(6) The purchase of the St Ives property by the owner via GEBC was an intervening act changing the character of the rent paid such that it was not a reasonably foreseeable loss as a result of contravention of s106(1) of the SSMA.

205 Counsel for the owner in his Reply submissions concedes that GEBC is a trustee for the Silbokids Family Trust. This fact also emerges from exhibit E. Counsel for the first to fifth respondents has not referred me to an evidentiary source which makes it clear that the owner is associated with the Silbokids Family Trust, or is a beneficiary under that trust.

206 ... In the same vein, counsel for the first to fifth respondents had the opportunity to suggest to the owner that it was a 'contrivance' by her to claim as a loss against the OC, money she was paying in rent to GEBC, but he did not do so. Also, it was not put to the owner that money she was paying as rent to GEBC would be distributed to back to her via the Silbokids Family Trust. Because these matters were not put to the owner, I reject them as a basis for finding that the owner is not entitled to claim the rent paid to GEBC as loss under s106(5) of the SSMA.

207 I do not accept the first to fifth respondent's submissions that the purchase of the St Ives property was an intervening act which changed the character of the rent paid such that it was not a reasonably foreseeable loss. I find that the purchase of the St Ives property by GEBC was not an intervening act. The owner was obliged to pay rent because she was unable to reside in the unit as originally planned because there was water ingress into the unit caused by the OC's failure to maintain and repair the common property balconies.

208 In Sydney Trains v Argo Syndicate AMA 1200 [2024] NSWCA 101 at [117] - [119] Leeming JA made observations about the use of terms 'chain of causation' or 'novus actus interveniens' in context of the circumstances of the case before him. ...

209 Adopting the approach stated by Leeming JA and, as he stated, expressing matters in ordinary words, what I must decide is whether the rent paid by the owner to GEBC for accommodation for herself and her family was a foreseeable loss suffered by her as a result of the OC's contravention of s106(1) or (2) of the SSMA. The fact that the owner was the shareholder and director of GEBC did not relieve her from arranging for alternative accommodation or paying for it. In that regard the amounts paid by way of rent still arose 'as a result' of the OC's failure to maintain and or repair common property, not because GEBC acquired the St Ives property.

(4) made a finding that the recommendations made by Mr Adamo in the 24 June 2021 Adamo email were not acts done in good faith within s 260(1) of the SSM Act ([315]-[316], [320]-[326], [355]-[358]) including:

"355 The owner's submissions concerning Mr Adamo refer to his 24 June 2021 email which I have set out in full at [212] above. The context of this email was that in June 2021 the building manager had obtained quotes for common property rectification work. On 23 June 2021 the building manager sent to the owner's husband a document which addressed various matters regarding rectification of common property defects, including whether or not the OC conceded an obligation to do any work in certain identified areas. The following day there was a meeting between the owner, her husband, Mr Crowley a strata committee member and Mr Adamo. The owner described the meeting as a mediation. Whether or not it had that formal quality is not relevant. The email from Mr Adamo dated 24 June 2021 followed that meeting and commented on it.

356 Mr Adamo's email was in the nature of a report to strata committee members. The main matters addressed in the email were the following passages which I have extracted from the email itself:

'The main sticking points were the West Balcony, but mainly the outrageous accommodation and relocation claim, which he is fixated upon and will not entertain any opposition to.

I suggest the way forward is for the OC (minus J. Silberstein of course) to resolve for the OC to issue a notice that it intends to undertake common property rectification works in Lot 132, being essentially those works listed in Darryl's summary circulated on Wednesday, with the exception of the Level 23 East Balcony and the West Balcony.

The Lot Owner (J. Silberstein) should be notified that the OC requires her to rectify those West Balcony issues in accordance with By-Law 52 within, say 21 days, in default of which the OC will undertake the works in accordance with By-Law 52.8 and bill her the costs thereof.

My view is that we should not under any circumstances agree to pay Lot 132 anything for relocation or accommodation expenses as, quite apart from the expense of that particular claim, it would set a potentially very expensive precedent for the future, whereby brazen Lot Owners who want to undertake major renovations, requiring them to move out of their apartment, can hit the OC for their relocation and accommodation costs if they discover a common property defect related to their Lot, whether or not that defect would have had any impact on the habitability of their apartment, which we would all agree would be a highly undesirable precedent from the point of view of the levy paying Lot Owners of the building.

Even if there are Non-Disclosure provisions in any settlement agreement/deed, it would not really be possible, as a practical matter, to keep it completely secret and prevent anyone else in the future relying on the precedent and saying to the OC, 'you paid the accommodation costs for Lot 132, therefore the OC should pay mine as a matter of fairness'.

Given the implications of such a claim for relocation/accommodation, then we have a duty on behalf of the Owners to vigorously defend any such claim in any court proceedings Lot 132 might bring.

Even if he could somehow prove that the common property defects made the apartment unliveable, the fact is that they could not live in it anyway once the place was gutted for the major renovations they are undertaking. Therefore, any damages for accommodation would be limited to the period before the apartment was gutted and became obviously unliveable, maybe a week or two.

357 I find that by June 2021 the owner had long left the unit and was residing elsewhere at her cost. By June 2021 some members of the strata committee and Mr Adamo in his capacity as the secretary of the OC had been informed that water was getting under a membrane and into the unit. Mr Adamo was also informed that in the building manager's opinion the OC was liable for the rectification of the level 22 west balcony. Refer Mr Hecker's 7 May email and [50] of these reasons.

358 I find that the recommendations made by Mr Adamo were not acts done in good faith because he was completely opposed to the owner's relocation and accommodation claim which indicates that his mind was closed to the possibility that because of the failure of common property membranes, it may be necessary for the owner and her family to reside elsewhere. I consider it to be highly relevant that Mr Adamo had been informed by the building manager Me (sic) Heckner, that water was getting under a membrane and into the unit and that the OC was liable for the rectification of the level 22 west balcony. As I have found, a failure to act in good faith will be indicated if actions or conduct can be characterized as a failure to act with the caution and diligence to be expected of an honest person of ordinary prudence, or a failure to act with reasonable caution and diligence. I find that Mr Adamo's recommendation that the OC should not under any circumstances agree to pay lot 132 anything for relocation or accommodation expenses because of its expense and to avoid a setting a precedent for the future was failing to act with the caution and diligence to be expected of an honest person of ordinary prudence who in this particular instance was a strata committee member obliged under s37 of the SSMA to carry out his functions for the benefit, so far as practicable, of the owners corporation and with due care and diligence. Recommending such an inflexible approach had the potential effect that the OC would be unable to recognize a situation where a failure of common property had the inevitable consequence that a lot owner would be required to vacate a lot while rectification work was carried out and that the financial consequences of the need to reside elsewhere were most probably the responsibility of the OC. I also find that Mr Adamo's recommendation/advice that the OC vigorously defend any claims in court proceedings that the owner might bring was a failure to act with the caution and diligence to be expected of an honest person of ordinary prudence. I make this finding because Mr Adamo had closed his eyes to there being any possible substance to the owner's claim rather than analysing it on the basis of the relevant facts. In my view a person acting with caution and diligence would have paid close attention to what had actually occurred to the owner and the unit as regards failure of common property and water ingress and would have been alive to or open to the possibility that in those circumstances, liability would attach to the OC."

(5) made a finding that Mr Adamo should be removed from the strata committee of OSP55468 ([453]-[466], [468], [471]-[472]) including:

"472 I have found that Mr Adamo did not act in good faith in connection with his 24 June 2021 email. In my view a finding that a strata committee member did not act in good faith is sufficient to establish that he has not carried out his functions with due care and diligence, in breach of s37 of the SSMA and as a consequence is in breach of s238(2) of the SSMA. As a result, I will make an order removing Mr Adamo from the strata committee."

(6) made a finding that Mr Adamo should be restrained from acting in the position of an office holder of OSP55468 or as a strata committee member of OSP55468 for a period of not less than one year ([487]):

"487 The owner has also sought an order restraining the. Second to fifth respondents from acting in the position of an office holder or as a strata committee member of the OC for a period of not less than five years from the date of making the order. No reference is made to the provisions of the SSMA which would entitle me to make such an order. While s229 of the SSMA may be appropriate for such an order, there are no submissions on behalf of the owner which explain why such an order should be made. An order for the period of time referred to would amount to a punishment of Mr Adamo which I do not consider to be warranted. However I do consider it appropriate to make such an order for 1 year."

1. On 6 December 2024, OSP55468 and Mr Adamo as the first and second appellants commenced proceedings 2024/00454672 against Ms Silberstein as the respondent by lodging a notice of appeal in which:

(1) in section 5A, OSP55468 appeals against order 4, and Mr Adamo appeals against order 9, of the 8 November 2024 orders;

(2) in section 5B, they set out their grounds of appeal;

(3) in section 5C, they set out the orders which they contends the Appeal Panel should make;

(4) in section 6B, they state that they are not asking for leave to appeal.

1. On 16 December 2024, the Tribunal granted leave to the parties to be legally represented, and made orders for the hearing of the appeal including for OSP55468 and Mr Adamo to lodge and serve an amended notice of appeal.
2. On 19 December 2024, OSP55468 and Mr Adamo lodged an amended notice of appeal.
3. On 7 February 2025, Ms Silberstein lodged a reply to the amended notice of appeal.
4. On 17 April 2025, OSP55468 and Mr Adamo lodged a further amended notice of appeal, in which to the extent necessary Mr Adamo is seeking leave to appeal.

1. At the commencement of the hearing, we made the following orders by consent:

(1) Messrs Engelbert, O'Brien and Gagen, Strata Choice, and Hecker, being parties to the proceedings under appeal and therefore parties to the appeal, are named as the second to sixth respondents, and Ms Silberstein is named as the first respondent;

(2) service of all documents in the appeal on Messrs Engelbert, O'Brien and Gagen, Strata Choice, and Hecker is dispensed with;

(3) OSP55468 and Mr Adamo are to lodge and serve a further amended notice of appeal, which specifies the questions of law which they contend arise on the appeal, and the other grounds on which they seek leave to appeal, by 17 April 2025.

1. The parties relied on the documents in the bundle of documents lodged on 2 April 2025.
2. The parties relied on their written submissions as follows:

(1) OSP55468 and Mr Adamo relied on First and Second Appellants' Submissions dated 20 February 2025 (the OSP55468/Adamo appeal submissions);

(2) Ms Silberstein relied on Respondent's Submissions dated 13 March 2025 (the Silberstein appeal submissions);

(3) OSP55468 and Mr Adamo relied on First and Second Appellants' Reply Submissions dated 4 April 2025 (the OSP55468/Adamo appeal submissions in reply).

1. Counsel for OSP55468 and Mr Adamo and the leading counsel for Ms Silberstein made oral submissions.

Whether the appeal is on one or more questions of law

1. As there is a dispute between the parties as to whether all the five questions identified by OSP55468 and Mr Adamo are questions of law, we have referred to these questions as the First to Fifth Questions respectively.
2. OSP55468 and Mr Adamo, in section 5B of the further amended notice of appeal, have identified the following five questions which they contend are questions of law to be determined on the appeal:

"B1. Was the Respondent and her family unlawfully occupying Unit 2202, [address omitted] in breach of the Environmental Planning and Assessment Act 1979 (NSW) in March 2021, and, if so, was she thereby disentitled from recovering damages for temporary accommodation costs and associated moving, storage and transportation costs under Section 106(5) of the Strata Schemes Management Act 2015 (NSW) ("SSMA") in respect of the First Appellant's breach of its statutory duty under Section 106(1) of the SSMA?

B2. In circumstances where the Respondent claimed she had incurred rent on temporary accommodation but then a company which she controlled purchased that accommodation, was her continued payment of rent to that company "reasonably foreseeable loss" for the purposes of Section 106(5) of the SSMA suffered as a result of the First Appellant's breach of its statutory duty under Section 106(1) SSMA?

B3. Did the Tribunal act on a wrong principle in exercising its discretion under Section 238(1) of the SSMA to remove the Second Appellant (Mr Adamo)e from the a strata committee in determining that Mr Adamo failed to exercise due care and diligence based only on the email of 24 June 2021 (the "Email") Mr Adamo sent to other strata committee members following Mr Adamo's meeting with the Respondent's husband?

1. OSP55468 and Mr Adamo in the OSP55468/Adamo appeal submissions have relevantly made the following submissions:

(1) as to the First Question, the Tribunal misconstrued s 6.3 of EPA Act and because of this error failed to consider its submissions that losses arising from unlawful conduct cannot be said to be "reasonably foreseeable loss suffered by the owner" as a result of a contravention by the owners corporation of s 106(1) of the SSM Act within s 106(5);

(2) as to the Second Question, it is the payment of rent by Ms Silberstein to GEBC which was not a "reasonably foreseeable loss suffered by the owner" as a result of a contravention within s 106(5) of the SSM Act;

(3) as to the Third Question, the Tribunal did not pay any sufficient regard to the context in which Mr Adamo made his statements in the 24 June 2021 Adamo email. Further, its finding that Mr Adamo failed to exercise due care and diligence was wrong in principle on the facts and circumstances of this matter;

(4) as to the Fourth Question, if Ms Silberstein was acting unlawfully by occupying the unit contrary to the EPA Act, then the Tribunal committed a legal error in determining that Mr Adamo did acts not in good faith which justified his removal under s 238(1)(a) of the SSM Act. This question of law arises only if OSP55468 is successful on the First Question of Law.

1. Having regard to the principles in Bianco Walling at [66] and Alexandria Landfill at [6], [20]-[22], we are satisfied that the First Question raises a question of law.
2. Having regard to the principles in Hope at 7, we are satisfied that the Second Question raises a question of law.
3. Having regard to the principles in Bimson, Roads & Maritime at [48]-[49], we are not satisfied that the Third and Fourth Questions raise a question of law. Mr Adamo in the OSP55468/Adamo appeal submissions has not identified any wrong principle on which the Tribunal acted. In substance, Mr Adamo is challenging a factual finding on which the Tribunal's exercise of discretion under s 238(1)(a) of the SSM Act.
4. Having regard to the principles in Bianco Walling at [66], we are satisfied that the Fifth Question raises a question of law.
5. It follows that OSP55468 has a right of appeal in respect of the First and Second Questions and Mr Adamo has a right of appeal in respect of the Fifth Question. It is necessary for Mr Adamo to obtain leave to appeal in respect of the Third and Fourth Questions.

1. This question contains the following two separate questions:

(1) whether Ms Silberstein was unlawfully occupying the unit as of March 2021;

(2) if so, whether Ms Silberstein was thereby disentitled from recovering damages from OSP55468 for breach of statutory duty.

1. Before considering these questions, it is appropriate to set out the submissions of the parties.

1. OSP55468 and Mr Adamo in the OSP55468/Adamo appeal submissions relevantly made the following submissions ([24]-[25], [31]):

"24. Therefore, on the premises that (1) an occupation certificate authorises the occupation and use of a new building in accordance with a development consent; (2) the CDC was issued for the whole of the unit; (3) works for the CDC had not by March 2021 been completed; (4) an occupation certificate, therefore, could not be issued; and (5) lawful use or occupation of the unit was not authorised until an occupation certificate had been issued. It is inescapable on these premises that the staging of works or continued occupation of part of unit where work had not been commenced is irrelevant in circumstances where a development consent, such as the CDC in this case, applied to the whole of the Unit.

25. Pending completion of the works the subject of the CDC there was no authority for the Respondent to use or occupy the building unit in accordance with the development consent that had been obtained. That is, an occupation certificate confers authority to occupy or use a building (or part of building) over which a development consent has been issued. Until that authority has been obtained, occupation or use of the area the subject of the development consent is not authorised and, therefore, unlawful under the EP&A Act."

"31. ... If the Respondent is entitled to recover the loss she claims, the loss she seeks to recover is dependent upon her having engaged in unlawful conduct. Compensation for that loss should be excluded on the grounds that the Respondent would have incurred costs to move out of the Unit and set up residence in alternatively suitable premises had she not unlawfully resided at the Unit in March 2021. The Respondent cannot rely on her unlawful action in residing at the Unit as a basis to claim compensation against the First Appellant. Such loss does not arise as a result of a contravention by the First Appellant of section 106(1) of the Act."

1. Counsel for OSP55468 and Mr Adamo in his oral submissions:

(1) made the following submissions:

(a) Ms Silberstein's methodology with respect to the P&S renovation works was to occupy and use the parts of the unit after the works relating to those parts had been completed and prior to the issue of an occupation certificate;

(b) Ms Silberstein's methodology was sufficient to engage the principle that that damages would not be allowed if their award were to be compensation for an illegal activity;

(2) made the following two concessions:

(a) firstly, Ms Silberstein would not have contravened Pt 6 of the EPA Act by occupying and using the parts of the unit that were not the subject of the proposed works depicted in the approved plans attached to the 13 November 2020 CDC;

(b) secondly, there was no evidence that Ms Silberstein occupied and used any of the P&S renovation works carried on level 23 before she and her family vacated the unit on 21 March 2021.

1. It is unnecessary to summarise the submissions of Ms Silberstein.

Whether Ms Silberstein was unlawfully occupying the unit as of March 2021

1. We do not accept that the 13 November 2020 CDC on its proper construction related to the whole of the unit. The attached approved plans which were incorporated in the 13 November 2020 CDC depict that the proposed works were limited to particular areas on levels 22 and 23.
2. We consider that the first concession of OSP55468 and Mr Adamo was properly made. The prohibition in s 6.3(1)(c) of the EPA Act when read with the definition of "building" in s 1.4 not to use or occupy a building without a certificate under Pt 6 can relate to part of a building. As specified in s 6.4(c) of the EPA Act the kinds of certificates under Pt 6 include an occupation certificate. As indicated in s 6.4(c)(i) of the EPA Act when read with the definitions of "new building" in s 6.1 and "development consent" in s 1.4, an occupation certificate may authorise the occupation and use of an altered part of an existing building in accordance with a complying development certificate.
3. In the light of the first concession of OSP55468 and Mr Adamo when read with the 13 November 2020 CDC, we are satisfied that the Tribunal did not make any error in the finding in the 8 November 2024 reasons at [184] that the combined effect of s 6.3 of the EPA Act and the CDC was that Ms Silberstein would not be contravening the EPA Act if she and her family lived in that part of the unit, not the subject of building work, as it was renovated.
4. In the light of the second concession of OSP55468 and Mr Adamo we are satisfied that the Tribunal did not make any error in the finding in the 8 November 2024 reasons at [184] that there was no unlawful conduct by Ms Silberstein in residing in those parts of her unit not the subject of renovation work.
5. It follows that the Tribunal did not make an error in answering the first of the two separate questions.

If so, whether Ms Silberstein was thereby disentitled from recovering damages from OSP55468 for breach of statutory duty

1. The second of the first of the two separate questions does not arise for consideration as it is dependent on an affirmative answer to the first of the two separate questions.
2. Counsel for OSP55468 and Mr Adamo sought to overcome this difficulty by submitting that Ms Silberstein's methodology was sufficient to engage the principle that that damages would not be allowed if their award were to be compensation for an illegal activity. In answer to our inquiry, he was unable to identify any authority that supported the engagement of the principle where the illegal activity had not occurred but was contemplated.
3. Counsel for Ms Silberstein objected to this submission as it had not been previously raised and could have been met by evidence.
4. It is unnecessary to consider the validity of this objection, as the finding of the Tribunal in the 8 November 2024 reasons at [189] does not support the existence of Ms Silberstein's methodology. Counsel for OSP55468 and Mr Adamo did not identify the existence of any other evidence that supports the existence of Ms Silberstein's methodology.

1. Before considering this question, it is appropriate to set out the submissions of the parties.

1. OSP55468 in the OSP55468/Adamo appeal submissions relevantly made the following submissions ([47]-[48]):

"47. Here there is no doubt that GEBC was the alter ego of the Respondent. As has long been acknowledged, a corporation is an abstraction and acts only by the directing mind and will of a person who is its agent. That agent in this case was the Respondent. By her free, deliberate and informed act the Respondent knew that GEBC became the owner of the St Ives Property. She further knew that she was paying rent to a company that she alone controlled. In these circumstances, the Respondent permitted the imposition of GEBC to perpetuate an artifice that she was still paying rent as if it was no different to when she was paying rent to the previous owner of the St Ives Property.

48. Relevantly, the Respondent was not forthcoming about "being the sole director or shareholder of GEBC or the fact that GEBC purchased the St Ives property and then leased it to her". She was rightly criticised for this by the Tribunal (see J[203]). However, that criticism should have gone further; the fact that the Respondent was not forthcoming masked the real consequence of the imposition of GEBC, which was to change the character of the rent as no longer being a "reasonably foreseeable loss suffered by the owner as a result of a contravention". The perpetuation of the payment of rent was no longer a loss brought about by the act of the First Respondent, but the deliberate choice of the Respondent to permit her state of affairs to be structured in a way suggestive of a continuation of loss as if the true owner of the St Ives Property was at arm's length."

1. It is unnecessary to summarise the submissions of Ms Silberstein.

1. We do not accept each of the following submissions of OSP55468:

(1) that GEBC was the alter ego of Ms Silberstein. As the unchallenged findings of the Tribunal in the 8 November 2024 reasons at [205] and [210] make clear, GEBC was the trustee of a family trust and there was no evidence that Ms Silberstein was a beneficiary under the trust;

(2) that the arrangement whereby GEBC purchased the St Ives property and Ms Silberstein paid rent to GEBC was an artifice. As the unchallenged findings of the Tribunal in the 8 November 2024 reasons at [206] make clear, this proposition was not put to Ms Silberstein in cross-examination. Counsel for OSP55468 and Mr Adamo did not identify any evidence that supported the artificial nature of this arrangement;

(3) that the character of the rent paid by Ms Silberstein changed after GEBC purchased the St Ives property.

1. It follows that we are satisfied that the Tribunal did not make any error in the finding in the 8 November 2024 reasons at [207] that the purchase of the St Ives property by GEBC was not an intervening act which changed the character of the rent paid such that it was not a reasonably foreseeable loss of Ms Silberstein.

1. Counsel for Mr Adamo during the hearing accepted that the Third Question did not raise a question of law, and that Mr Adamo would need to obtain leave to appeal.
2. Before considering this question, it is appropriate to set out the submissions of the parties.

1. Mr Adamo in section 5C of the further amended notice of appeal has identified the following reasons why leave to appeal should be granted for the Third Question:

"(a) The relevant ground/s raised B3 to B5 raise issues of principle and matters of public importance concerning the application of the SSMA, in particular in relation to: (a) the scope of the removal power in Section 238 of the SSMA in evaluating that a strata member has failed to exercise due care and diligence based only on a single communication made to other strata committee members on contested issues in the context of anticipated legal proceedings between the First Appellant and the Respondent; and (b) the determination of whether there is, and if so, what, power to restrain for a period of time a removed Office Holder or Strata Committee Member;

(b) The Member's decision to remove Mr Adamo based only on a single communication made to other strata committee members on contested issues in the context of anticipated legal proceedings between the First Appellant and the Respondent a reasonably clear injustice, going beyond what is merely arguable;

(c) The Member's reliance on the email, particularly due to its confidential and privileged nature, to justify his removal of Mr Adamo is an error that is plain and readily apparent, and which was central to his decision to remove Mr Adamo, and not merely peripheral to such decision, so that it would be patently unjust to allow the finding, which relies on the Email, to stand single communication made to other strata committee members on contested issues in the context of anticipated legal proceedings between the First Appellant and the Respondent was not fair and equitable in the circumstances of the case such as to be considered a substantial miscarriage of justice."

1. Mr Adamo in the OSP55468/Adamo appeal submissions relevantly made the following submissions ([54]-[62]):

54. The Tribunal did not pay any sufficient regard to the context in which Mr Adamo's made his statements in his communication of 24 June 2021. The first critical context was the unsuccessful "mediation" of the day before. Mr Adamo expressed his views in the context of an anticipated legal dispute. It was far from a general circular by Mr Adamo to the Strata Committee.

55. The second critical context was the disagreement between the parties whether the Respondent and her family should have been living in the Unit while "major renovations" were taking place. This issue remains in dispute in this appeal.

56. The third critical context was that the Tribunal focussed on a single communication to make a very unfavourable determination against Mr Adamo of clear and substantial dereliction of duty to enliven the discretion based on a failure to exercise due care and diligence.

57. The Tribunal paid little regard to this context in finding that Mr Adamo's recommendations were not made in good faith and, therefore, lacked due care and diligence. By paying little regard to this context the determination was more likely made through the prism of the Tribunal's findings following the hearing that the Respondent was entitled to be compensated for alternative accommodation and associated moving, storage and transportation costs.

58. Had the Tribunal considered the context in which the communication was made, and the fact that Mr Adamo was expressing a position on a claim that was likely going to be litigated, there is nothing which would indicate lack of due care and diligence. Quite the contrary, Mr Adamo was prosecuting with due care and diligence a view which was protective of the immediate and future interests of the First Appellant in dealing with claims by lot owners for recovery of losses, and where losses had arisen whilst an owner remained in occupation of premises during major renovations the subject of development approval.

59. The Tribunal's conclusion that Mr Adamo failed to exercise due care and diligence was wrong in principle on the facts and circumstances of this matter. First, the lack of attention to the context of Mr Adamo's communication permitted the Tribunal to engage in hindsight reasoning based on findings which had been made in the proceedings below.

60. Secondly, it was wrong to punish Mr Adamo for the expression of views which were seriously disputed and would not be resolved until a contested hearing on that very issue took place, and equally wrong to do so based on one single communication in which that view was expressed following a failed "mediation" to resolve the dispute with the Respondent.

1. Counsel for Mr Adamo in his oral submissions submitted that leave to appeal should be granted because the Tribunal relied on a single communication.

1. It is unnecessary to summarise the submissions of Ms Silberstein.

1. We are satisfied that a finding that a member of the strata committee of an owners corporation failed to exercise due care and diligence while holding the office s 238(2)(b) of the SSM Act required an evaluative judgment on the part of the Tribunal. To establish legal error in such circumstances it must be shown that the Tribunal has not acted in good faith, has acted arbitrarily or capriciously, misdirected itself in law, failed to take account of mandatory considerations, taken into account prohibited considerations, or has acted unreasonably: Cooper v The Owners-Strata Plan No 58068 (2020) 103 NSWLR 160; [2020] NSWCA 250 (Cooper) at [19] (Basten JA); citing Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118-119 (Gibbs J); [1976] HCA 24.
2. The submissions of Mr Adamo in substance do no more than set out his disagreement with this evaluative judgment the Tribunal in making the findings in the 8 November 2024 reasons at [358], but do not demonstrate any legal error made by the Tribunal within the principles in Cooper at [19].
3. In these circumstances, we are not satisfied that Mr Adamo may have suffered a substantial miscarriage of justice within any of cl 12(1)(a), (b) or (c) of Sch 4 of the NCAT Act in respect of the removal order within either approach identified in Impala Kitchens at [67].
4. It is consequently unnecessary to consider whether we should exercise the discretion under cl 12(1) of Sch 4 of the NCAT Act. If it had been necessary to exercise this discretion, then, having regard to the principles in Maclean at [24], we would not have exercised the discretion in favour of Mr Adamo.

1. Mr Adamo in the OSP55468/Adamo appeal submissions accepted that the Fourth Question would only arise for determination if he was successful on the First Question.
2. As Mr Adamo was unsuccessful on the First Question, it is unnecessary to determine the Fourth Question.

1. The parties were in agreement that s 229(a) of the SSM Act does not constitute a source of power for the restraint order. We are satisfied that s 229(a) of the SSM Act does not constitute a source of power for the restraint order as it is not a matter that was ancillary to or consequential upon the removal order.
2. It follows that the Tribunal made an error of law in the 8 November 2024 reasons at [487] in finding that s 229 of the SSM Act conferred power for the making of the restraint order.
3. As the parties are in disagreement as to the consequences of this error of law, we have set out their submissions.

1. Ms Silberstein in the Silberstein appeal submissions submitted that s 232(1)(a) or s 241 of the SSM Act is an alternative source of power for the restraint order for the following reasons:

(1) section 232 is not restricted as to whom the order may be directed towards, nor the type of order. The power in s 232 is of broad and flexible scope;

(2) section 241 has been described as a power to make orders "similar to mandatory or prohibitory injunctions": Walsh v The Owners - Strata Plan No 10349 [2017] NSWCATAP 230 (Walsh) at [59]. Again, the power is clearly broad. It applies to any person, and the Tribunal may order a person to do or refrain from doing any act.

1. Mr Adamo in the OSP55468/Adamo appeal submissions in reply relevantly made the following submissions:

(1) Ms Silberstein would now need to bring a cross-appeal to contend that there is another power for the making of the restraint order. This is a clear instance where she is seeking a variation of the orders of the Tribunal. As there is no cross-appeal the Appeal Panel cannot entertain her argument;

(2) if that is not the case, then neither s 232 nor 241 of the SSM Act are apt to confer power on the Tribunal for the making of the restraint order.

1. It is important to note that the restraint order does not prevent Mr Adamo from being elected as a member of the strata committee or as an officer of OSP55468, but from acting in those roles.
2. We do not agree that it is necessary for Ms Silberstein to lodge a cross-appeal to contend that there are alternative sources of power for the making of the restraint order because she is not seeking to set aside or vary this order.
3. We are satisfied that it is appropriate to consider whether either s 232(1)(a) or s 241 of the SSM Act conferred power upon the Tribunal for the making of the restraint order as Mr Adamo did not point to any prejudice that would be occasioned by the determination of this question.
4. In the context of the statutory predecessor of the SSM Act it has been held that the equivalent of s 232(1)(a) and (e) are "words of limitation on the power of the Tribunal, confining the subject matter of the dispute or complaint about which the Tribunal may make orders", and the Tribunal does not have power "to make any order to settle any dispute or complaint": The Owners-Strata Plan No 37762 v Pham [2006] NSWSC 1287 at [62]- [65] (Rothman J); cited in Walsh at [32]-[33]; applied in EB 9 & 10 Pty Ltd v The Owners Strata Plan 934 (2018) 98 NSWLR 889; [2018] NSWCA 288 at [50]) (Barrett AJA with Meagher JA at [1] and Gleeson JA at [2] agreeing). These principles have been applied to s 232 of the SSM Act: Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147 at - .

(1) Basten JA at [26] and [28] made the following observations about s 232 of the SSM Act:

"[26] Section 232 of the Strata Schemes Management Act ... 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 ..."

[28] ... The statutory scheme must be read as a whole. The terminology adopted in s 232 should be understood to cover claims and disputes with respect to any of the matters identified in subs (1), which are themselves in terms clearly intended to cover the full range of an owners corporation's functions in operating, administering and managing the strata scheme, and exercising or failing to exercise any function under the Act, or the by-laws of the strata scheme.

(2) White JA, after noting at [183] that there is no express provision in the SSM Act for the Tribunal to order that costs payable by an owners corporation be paid from contributions levied only in relation to specified lots in a proportion specified in the order, and that an owners corporation cannot levy a contribution for its own costs against a party who is successful in court proceedings against it, at [184] made the following observations about s 232 of the SSM Act:

"[184] I do not think this has any relevance to the issue of a Tribunal's powers under s 232(1) except as raising the possibility that the power to resolve all aspects of a dispute should extend to all aspects as to how and by whom the costs of the dispute should be borne in so far as that is not dealt with by other specific provisions."

1. Subsequent to Vickery, an Appeal Panel has held that s 232(1) of the SSM Act is sufficiently broad to encompass the making of a quarantine order that monies ordered to be paid by the owners corporation not be levied against a lot owner who was successful against the owners corporation in the proceedings: The Owners-Strata Plan No 74698 v Jacinta Investments Pty Ltd [2021] NSWCATAP 387 at [183]- [202]; The Owners-Strata Plan 62713 v Liberant [2022] NSWCATAP 80 at [115]- [132].
2. We accept that s 232(1)(a) of the SSM Act could extend to a complaint or dispute about the strata committee in view of the fact that it is empowered pursuant to s 11(a) of the SSM Act to assist the owners corporation in carrying out its principal responsibility for the management of the strata scheme as stipulated in s 9(1).
3. We are not satisfied that s 232(1)(a) of the SSM Act conferred power upon the Tribunal to make the restraint order as by reason of the making of the removal order Mr Adamo was no longer a member of the strata committee and consequently an officer of OSP55468 pursuant to s 45(1)(a). It follows that there could not be any complaint or dispute that could be settled by the making of an order restraining Mr Adamo from acting in the capacity as a member of the strata committee or as an officer of OSP55468.
4. We are not satisfied that s 241 of the SSM Act conferred power upon the Tribunal to make the restraint order for the following reasons:

(1) an order to do or refrain from doing a specified act under s 241 is a form of injunction authorised by statute: Walsh at [59];

(2) as is the case of any form of injunction, because it is a remedy, it is axiomatic that it can only issue to protect an equitable or legal right or, which is often the same thing, to prevent an equitable or legal wrong: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at [60] (Gaudron J), [91], [105] (Gummow and Hayne JJ);

(3) there is no provision in the SSM Act specifically authorising the restraint of a duly elected member of the strata committee or officer of the owners corporation from acting in those roles. Further, s 232(1)(a) of the SSM Act was not the source of such a power.

1. As the Tribunal did not make any error in answering the first and second questions, the appeal by OSP55468 against the award of the temporary accommodation costs and $10,000.00 for loss of amenity damages as damages for its breach of s 106(1) of the SSM Act should be dismissed pursuant to s 81(1)(a) of the NCAT Act.
2. As the Tribunal did not make any error in making the removal order we are not satisfied that Mr Adamo may have suffered a substantial miscarriage of justice within cl 12(1)(a), (b) or (c) of Sch 4 of the NCAT Act. It follows that we have decided to refuse leave to appeal to Mr Adamo in respect of the removal order pursuant to cl 12(1) of Sch 4 of the NCAT Act.
3. As the Tribunal made an error in answering the fifth question, the appeal by Mr Adamo in respect of the restraint order should be allowed pursuant to s 81(1)(a) of the NCAT Act. It follows that order 9 of the 8 November 2024 orders should be set aside and in its place the removal order should be made and an order dismissing the claim against Mr Adamo for an order restraining him from acting as a member of the strata committee or as an officeholder of OSP55468 pursuant to s 81(1)(d) of the NCAT Act.

1. OSP55468 and Mr Adamo in the OSP55468/Adamo appeal submissions applied for the costs of the appeal. Ms Silberstein in the Silberstein appeal submissions applied for the costs of the appeal.
2. At the conclusion of the hearing, we discussed with the parties whether we should determine the costs of the appeal and make procedural directions permitting the parties to apply to vary the costs order or determine the costs of the appeal separately after our decision. Counsel for OSP55468 and Mr Adamo requested that we follow the second approach. The leading counsel for Ms Silberstein requested that we follow the first approach. We have decided to follow the first approach.
3. Section 60 of the NCAT Act deals with costs, and relevantly provides:

60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party's own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following -

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter that the Tribunal considers relevant.

(4) If costs are to be awarded by the Tribunal, the Tribunal may -

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

costs includes -

(a) ...

(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

1. Rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) deals with costs in the Consumer and Commercial Division of the Tribunal, and relevantly provides:

38 Costs in Consumer and Commercial Division of the Tribunal

(1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal.

(2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if -

...

(b) the amount claimed or in dispute in the proceedings is more than $30,000.

1. Rule 38A of the NCAT Rules deals with costs in internal appeals, and relevantly provides:

38A Costs in internal appeals

...

(2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.

1. For the purpose of r 38A of the NCAT Rules the amount claimed or in dispute is the amount in dispute on appeal, not the amount in dispute in the proceedings at first instance: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57].
2. We are satisfied that r 38A(2) of the NCAT Rules is applicable to this appeal so far as it is made by OSP55468 because the amount in dispute in the appeal is more than $30,000. It follows that the position of each of OSP55468 and Ms Silberstein paying their own costs specified in s 60(1) of the NCAT Act does not apply to the appeal by OSP55468. We are also satisfied that s 60 of the NCAT Act is applicable to the appeal by Mr Adamo.
3. The general principles concerning the awarding of costs under r 38 of the NCAT Rules were considered by the Appeal Panel in Vella v Mir (No 3) [2020] NSWCATAP 17 (Vella (No 3)) at [28]-[33]:

"[28] Clause 38 gives the Tribunal a wide discretion to make an order for costs. It does not specify the factors the Tribunal must take into account in exercising the discretion, although the discretion to make such an order must be exercised judicially: see, for example, Ruddock v Vadarlis [2001] FCA 1865 at [9].

[29] Where an application has been heard and determined on the merits and Clause 38 applies, the appropriate starting point for the exercise of the discretion is not that the parties are to pay their own costs. Rather, it is the well-established position at common law; that is, that the purpose of making a costs order is to provide compensation to the party in whose favour the order is made for the expense the party has been put to in prosecuting or defending legal proceedings. In general terms, this means that a party who is successful is entitled to an order for costs in its favour, subject to exceptions generally involving misconduct on the part of that party: Latoudis v Casey [1990] HCA 59; [1990] 170 CLR 534; Oshlak v Richmond River Council [1998] HCA 11.

[30] In BNT Constructions Pty Ltd v Allen [2017] NSWCATAP 186 the Appeal Panel, having set aside a costs order made in the Consumer and Commercial Division, decided to re-exercise the costs discretion. Clause 38 was the applicable costs provision in that case. At [67] the Appeal Panel noted the following principles relevant to the exercise of the discretion:

(1) the starting point is that a successful party should be entitled to an order for costs in his favour;

1. Having regard to the principles in Vella (No 3) at [28]-[33], we are satisfied that the appeal gave rise to the following two substantially separable issues which should be considered separately when determining the costs of the appeal:

(1) whether Ms Silberstein was not entitled to the temporary accommodation costs and the loss of amenity damages as damages for its breach of s 106(1) of the SSM Act (the first separable issue);

(2) whether Ms Silberstein was not entitled to the removal order and the restraint order (the second separable issue).

1. The first separable issue largely arose in the appeal by OSP55468. We accept that there was overlap between the first separable issue and the second separable issue so far as Mr Adamo contended that Ms Silberstein was acting unlawfully by occupying the unit contrary to the EPA Act. The second separable issue solely arose in the appeal by Mr Adamo.
2. We consider that 80% of the appeal was referrable to the first separable issue, while 20% of the appeal was referrable to the second separable issue.
3. As Ms Silberstein was successful on the first separable issue, we are satisfied that OSP55468 should pay 80% of her costs of the appeal pursuant to rr 38(1) and (2)(b) and 38A(2) of the NCAT Rules.
4. We are not satisfied that there are special circumstances warranting an award of costs in favour of either Ms Silberstein or Mr Adamo in respect of the second separable issue within s 60(2) of the NCAT Act. It follows that we are satisfied that there should be no order as to the costs of the appeal by Mr Adamo.

(1) The appeal by the first appellant is dismissed.

(2) Leave to appeal by the second appellant in respect of the order removing him as a member of the strata committee of the first appellant is refused.

(3) The appeal by the second appellant in respect of the order restraining him from acting as a member of the strata committee or as an officeholder of the first appellant is allowed.

(4) Order 9 made by the Tribunal on 8 November 2024 is set aside, and in its place the following orders are made:

(a) 9. Michael Adamo is removed from the strata committee of The Owners - Strata Plan No. 55468.

(b) 9A. The claim against Mr Adamo for an order restraining him from acting as a member of the strata committee or as an officeholder of The Owners - Strata Plan No. 55468 is dismissed.

(5) The first appellant is to pay 80% of the costs of the respondent of the appeal on the ordinary basis.

(6) There is no order as to the costs of the appeal by the second appellant.

(7) If any party wishes to make an application to vary one or both of orders (5) and (6) above (the costs application):

(a) the applicant is to lodge and serve the costs application, submissions limited to three pages and any evidence in support within seven days of this decision;

(b) the respondent to the costs application is to lodge and serve any submissions limited to three pages and any evidence in response within 14 days of this decision;

(c) the applicant is to lodge and serve any submissions in reply limited to two pages within 21 days of this decision;

(d) the parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent submissions of no more than one page as to why an oral hearing should be conducted rather than the costs application being determined on the papers. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of the costs application.

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.