The Owners - Strata Plan No 60182 v Bornzin

ORDERS SOUGHT BY THE OWNERS CORPORATION

1. The owners corporation seeks the following orders:
2. The owners corporation be given access, on the provision of 48 hours written notice, for access to the Lot under s 124 (1) of the SSMA 2015 to: 1. Remove venetian blinds installed on the balcony of the Lot; 2. Remove the bamboo screen adjacent to the terrace fence in the courtyard area; 3. Repair any damage to common property.
3. Compensation to the owners corporation and "legal costs" under s 132 (1) (b) of the SSMA 2015 in respect of the expenses incurred in removing the venetian blinds and the bamboo privacy screen. The owners corporation quantifies the cost of removing the bamboo privacy screen as $400 plus GST.
4. In the alternative to a costs order under s 132 (1) (b) of the SSMA 2015, an order under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) ('the NCAT Act') that the Lot owner pay the owner's corporation's costs of the proceedings.
5. If necessary, the access order under s 124 (1) of the SSMA 2015 be made "nunc pro tunc as at the date of the commencement of these proceedings".

Owners Corporation

1. The owners corporation relied upon the following documentary evidence: 1. Statement of Mr Jake Smolinski, strata manager, dated 25 July 2018. The statement attaches a bundle of documents comprising of 240 pages. It is unnecessary to list all the documents, but they relevantly include a copy of the registered strata plan and community management statement; copies of by-laws; correspondence between the Lot owner and the strata committee; photographs; and copies of previous decisions of the Tribunal. 2. Statements of Ms Kim Hunter, senior building manager, dated 25 July 2018 and 13 September 2018. Ms Hunter is the senior building manager employed by Moore Park Gardens Management. Moore Park Gardens Management is the building manager appointed by the Community Association DP 270095, which is the community association under the Community Land Management Act 1999 (NSW) of which registered strata plan No 60182 forms a part of. 3. Statement of Mr Phillip Torpy dated 17 September 2017. Mr Torpy is the strata manager who succeeded Mr Smolinski. 4. Statement of Mr Dennis Edwards, former member of the strata committee. Mr Edwards stated in cross examination that he was, for a long period of time, a member of the strata committee, but had recently resigned.
2. Mr Smolinski, Ms Hunter and Mr Torpy did not attend the hearing, but the legal representative of the Lot owner did not seek to cross examine them in any event.
3. Mr Edwards was not present at the hearing, but was available to be cross examined by telephone. Mr Edwards was briefly cross examined at the hearing by the legal representative of the Lot owner regarding the visibility of the blinds and bamboo privacy screen; and whether the bamboo privacy screen was attached to the metal fence that formed part of common property.

Lot Owner

1. The Lot owner relied upon the following documentary evidence: 1. Affidavit of the Lot owner dated 11 September 2018. 2. Additional photographs of the blinds; the balcony where the blinds were located; and the bamboo privacy screen.
2. The Lot owner briefly gave evidence regarding the photographs, and claimed that the neither the blinds nor the bamboo privacy screen were attached to common property.
3. The Lot owner was briefly cross examined regarding how the blinds had been attached to the balcony; and how the bamboo privacy screen had been located and attached.

SUBMISSIONS OF THE PARTIES

1. At the conclusion of the hearing, the Tribunal made directions regarding the filing and serving of written submissions. Both parties filed extensive submissions as follows: 1. Owners corporation-submissions in chief dated 2 October 2018. 2. Lot owner-submissions in chief dated 15 October 2018. 3. Owners corporation-submissions in reply dated 23 October 2018.

CONSIDERATION

1. Section 124 of the SSMA 2015 states as follows: 124 Orders by Tribunal relating to entry to carry out work or inspections (1) The Tribunal may, on application by an owners corporation for a strata scheme, make an order requiring the occupier of a lot or part of a lot in the scheme to allow access to the lot for any of the following purposes: (a) to enable the owners corporation to carry out work referred to in section 118, 119, 120 or 122 or to determine whether such work needs to be carried out, (b) to enable an entry or inspection referred to in section 122 or 123 or Part 11 to be carried out. (2) This section does not limit the power of an owners corporation to enter a lot under this Division in an emergency without applying for an order.
2. Section 118 of the SSMA 2015 refers to window safety devices for child safety, and is not applicable to the issues in dispute in these proceedings.
3. Section 119 of the SSMA 2015 states as follows: 119 Work to rectify certain defects (1) An owners corporation for a strata scheme may carry out work that is necessary to rectify any of the following defects: (a) any structural defect in any part of a building comprised in a lot in the scheme that affects or is likely to affect the support or shelter provided by that lot for another lot in the building or the common property, (b) any defect in any pipe, wire, cable or duct that provides, or through which passes, any water, sewage, drainage, gas, electricity, garbage, artificially heated or cooled air, heating oil or other service (including telephone, internet, radio or television services) within a lot. (2) An owners corporation may carry out the work at its own expense if the cost of the work cannot be recovered from some other person.
4. The owners corporation in its submissions does not rely on s 119 of the SSMA 2015, but states that there are "2 basis" it is entitled to access orders as follows: 1. To "give effect" to the orders made by Senior Member Rosser on 27 April 2016 that the Lot owner remove the venetian blinds on the balcony and bamboo privacy screen. The owners corporation relies on s 120 (4) and 124 (1) ; 2. In the alternative, to make "anew" the "same findings" as Senior member Rosser.
5. Section 120 of the SSMA 2015 states: 120 Owners corporation may carry out work required to be carried out by others (1) Work required by public authority If an owner of a lot in a strata scheme fails to carry out work that is required to be carried out under a notice given to the owner by a public authority, the owners corporation may carry out the work and recover the cost of carrying out the work from the owner or any person who, after the work is carried out, becomes the owner. (2) Work required to be carried out under term or condition of by-law If a person who is the owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in the strata scheme fails to carry out work that is required to be carried out by the person under a term or condition of a by-law of the scheme, the owners corporation may carry out the work and recover the cost of carrying out the work from that person, the owner of the lot (if the person is not the owner) or any person who, after the work is carried out, becomes the owner of that lot. (3) Work that is duty of owner or occupier to carry out If a person who is the owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in the strata scheme fails to carry out work in order to remedy a breach of a duty imposed by Part 8, the owners corporation may carry out the work and recover the cost of the work from that person. (4) Work required to be carried out under order If a person fails to carry out work required to be carried out under an order made under this Act, the owners corporation may carry out the work and recover the cost of carrying out the work from the person against whom the order was made. (5) Recovery of costs as a debt The costs incurred by an owners corporation in carrying out any work referred to in this section may be recovered by the owners corporation as a debt.

Was There An Extant Order that the Lot Owner Carry Out Work?

1. The order made by Senior Member Rosser was under the SSMA 1996. Under Part 4 of the SSMA 1996 most (but not all) strata disputes were dealt with at first instance by a Strata Adjudicator. Section 138 of the SSMA 1996 gave the Strata Adjudicator a general power to make orders to resolve disputes regarding the operation of the Act; the by-laws; and the management of a strata scheme. Section 172 of the SSMA 1996 stated: 172 Duration of order by Adjudicator Except to the extent that the order otherwise provides, an order made by an Adjudicator under this Part (other than an interim order) ceases to have any force or effect on the expiration of the period of 2 years that commences on the making of the order.
2. Under s 177 of the SSMA 1996, an appeal to the Tribunal could be made from an order of a Strata Adjudicator. Section 181 of the SSMA 1996 stated: 181 Determination of appeal from order of Adjudicator (1) This section applies to the determination by the Tribunal of an appeal from an order of an Adjudicator. (2) The Tribunal may admit new evidence. (3) Unless the order appealed against is an interim order, the Tribunal may determine an appeal by an order affirming, amending or revoking the order appealed against or substituting its own order for the order appealed against. (4) If the order appealed against is an interim order, the Tribunal may determine the appeal by an order revoking the interim order or dismissing the appeal. (5) An order made by the Tribunal under subsection (3) has effect, and the provisions of this Act (other than the provisions conferring a right of appeal to the Tribunal) apply to it, as if it were an order made under the same provision as the order appealed against. (6) Subsection (5) does not exclude an appeal from an order of the Tribunal made under this section.
3. In this matter, Senior Member Rosser on appeal from a decision of a Strata Adjudicator, held that the appeal succeeded, and substituted orders under s 181 (3) of the SSMA 1996.
4. The date of the Tribunal's orders was 27 April 2016. The orders of the Tribunal took effect on or about that date (subject to the provisions of s 210 of the SSMA 1996) as an order substituting a decision for the decision made by the Strata Adjudicator.
5. Strata Adjudicators had the power under s 145 of the SSMA 1996 to order an owners corporation to have access to a Lot to enable the owners corporation to carry out "any work referred to in s 65(1)…" (s 145 (1) (a) of the SSMA 1996). However, under s 65 (1) of the SSMA 1996, the work in question was work "required to be carried out by the owners corporation". Section 120 of the SSMA 2015 is materially different to the statutory regime under the SSMA 1996, because it allows the owners corporation to perform work (and recover the cost of such work) other than in circumstances where the owners corporation itself has a duty to perform work, such as the duty to keep common property in a state of good and serviceable repair.
6. Under the SSMA 1996, a failure by a Lot owner to comply with an order could result in the imposition of a civil penalty under Part 6 of the SSMA 1996, which is what occurred when Senior Member Vrabac imposed a penalty on the Lot owner on 16 December 2016. However, the provisions of the SSMA 1996 regarding the imposition of a civil penalty for failure to comply with orders were not replicated in the SSMA 2015. The provisions of s 172 of the SSMA 1996 regarding the duration of orders of Strata Adjudicators are also not replicated (in the context of orders of the Tribunal) in the SSMA 2015.
7. The owners corporation submits that by reason of the savings and transitional provisions in cl. 9 sch.3 of the SSMA 2015, and the decision of the Tribunal (constituted by 3 Members, including the President) in The Owners-Strata Plan No 28306 v Anderson [2017] NSWCATCD 85, orders made under the SSMA 1996 had "a facultative effect" and "existing orders…could be enforced under both the 1996 Act and the 2015 Act". The owners corporation submits that the orders of Senior Member Rosser dated 27 April 2016 were "deemed to have been made under s 232 of the 2015 Act" and had no expiration period as s 172 of the SSMA 1996 did not apply. The owners corporation submitted that s 172 of the SSMA 1996 only applied to "remedies" under the SSMA 1996, not the SSMA 2015.
8. The SSMA 1996 was repealed and replaced by the SSMA 2015 on 30 November 2016. Orders of a Strata Adjudicator were not orders of NCAT or its predecessor, the Consumer, Trader and Tenancy Tribunal: Wrigley v Owners Corporation SP 53413 [2017] NSWCATAP 100 at [9]; Moellem v Consumer Trader and Tenancy Tribunal [2013] NSWSC 1700 at [57]-[60]; Shabazian v Owners Corporation SP 56466 [2017] NSWCATCD 83 at [9].
9. The power of the Tribunal under s 177 of the SSMA 1996 was to hear appeals from decisions of Strata Adjudicators. Although there was some controversy as to whether the appeal was a re-hearing or an appeal de novo and the circumstances in which fresh evidence could be admitted in the appeal (see The Owners-Strata Plan No 6534 v El Khouri [2015] NSWCATCD 147 at [37]-[39] and Balafoutis & Ors v The Owners-Strata Plan No 76536 [2016] NSWCATCD 83 at [9], the power of the Tribunal under s 181 (3) and (5) of the SSMA 1996 were to substitute its order (if the appeal was successful and it exercised its discretion to make such an order) for the order appealed against as if it were an order made under the same provision as the order appealed against.
10. Accordingly, the orders made by Senior Member Rosser on 27 April 2016 had the same effect as orders of a Strata Adjudicator, as the Senior Member had substituted orders of the Strata Adjudicator on appeal. The orders of Senior Member Rosser on 27 April 2016 thus are subject to the 2 year expiration period under s 172 of the SSMA 1996, although the 2 year period commences prospectively from 27 April 2016 or the date the orders were deemed to take effect under s 210 of the SSMA 1996.
11. The fact that Senior Member Rosser made orders and gave reasons on the same date that the hearing was conducted on 27 April 2016 indicates that the orders were received by the parties on or about 27 April 2016.
12. The relevant savings and transitional provisions in sch. 3 cl. 9 of the SSMA 2015 states as follows: 9 Existing orders under former Act An order made by an Adjudicator or a Tribunal under the former Act, and in force immediately before the commencement of this clause, is taken to have been made by the Tribunal under the corresponding provision of this Act.
13. In The Owners - Strata Plan No 82306 v Anderson [2017] NSWCATCD 85 ('Anderson'), the Tribunal dealt with the savings and transitional provisions under sch. 3. cl. 9 of the SSMA 2015 in circumstances where a Strata Adjudicator had made orders that a Lot owner do work to remove alterations to flooring in contravention of a by-law. The orders of the Strata Adjudicator were dated 30 June 2016. The owners corporation commenced proceedings seeking the imposition of a civil penalty and costs under ss 202 and 204 of the SSMA 1996.
14. The Tribunal held that the orders of the Strata Adjudicator took effect from 7 July 2016 and "continued in force for 2 years from the making of the order" (para [23])). The Tribunal stated at [48]: As explained above, the Adjudicator's order of 30 June 2016 took effect, at the latest, on 7 July 2016 and, by operation of s 172 of the 1996 Act, was to remain in force until 29 June 2018.
15. Further, the Tribunal stated at para [52]: "…For an obligation to be "accrued" in the relevant sense, the obligation must have come into being and been real and continuing at the relevant time - Shahbazian v Owners Corporation SP 56466 [2017] NSWCATCD 83 at [69] and see also Aitken v South Hams District Council [1995] 1 AC 262 at 272 and Tael One Partners Limited v Morgan Stanley & Co International PLC [2015] UKSC 12 at [42]. In our view, the obligation imposed on Ms Anderson by the order of 30 June 2016 had come into being when it was duly made under the 1996 Act. It was real and continuing in that it came into effect when notice of the order was served on Ms Anderson between 4 and 7 July 2016 and it continues in effect until 29 June 2018, by operation of s 172 of the 1996 Act as preserved by s 30(1)(b) of the Interpretation Act. Thus, the obligation arising out of the order was accrued under the 1996 Act at the time that that Act was repealed and when the proceedings under s 202 were commenced."
16. The Tribunal held that by reason of the operation of s 30 (1) (b) of the Interpretation Act 1987 (NSW), cl. 9 sch 3 of the SSMA 2015 was to be interpreted in a manner that meant that the orders of the Strata Adjudicator continued to operate after 30 November 2016 "as it did before the repeal of the 1996 Act". (Anderson at [48]). Consequently, the Tribunal had the power to order a pecuniary penalty under s 202 of the SSMA 1996, with the Tribunal applying the same principles it had set out in Shahbazian v Owners Corporation SP 56466 [2017] NSWCATCD 83.
17. The submission of the owners corporation is that in Anderson the Tribunal found that cl. 9 of sch. 3 of the SSMA 2015 is "facultative in effect" and deems the orders of Senior Member Rosser dated 27 April 2016 to be under s 232 of the SSMA 2015 without any expiration period. In Anderson, the Tribunal referred to the "facultative" nature of cl 9 sch 3 of the SSMA 2015 as follows (at [64]-[65]): "Clause 9 is applicable in the present circumstances because the order of 30 June 2016 was an order of an adjudicator in force immediately prior to the commencement of the 2015 Act. Thus, the order is taken to have been made by the Tribunal under the corresponding provision of the 2015 Act. Accordingly, proceedings could have been commenced under s 75 of the NCAT Act by an "authorised official" for the imposition of a pecuniary penalty under s 77 of that Act based on a contravention of s 72(3). In our view, however, cl 9 is in this regard facultative. It does not provide that adjudicator's orders that fall within its terms cease to be adjudicator's orders or that such orders cannot be enforced by other means, if they are available. In Shahbazian we held at [81] that although cl 9 did not apply to the order in that case, even if it did, the clause did not establish, expressly or impliedly, an exclusive regime for how adjudicators' orders were to be treated after the repeal of the 1996 Act. We said that cl 9 provides a mechanism for dealing with a limited class of adjudicators' orders but it does not exclude those orders or other classes of adjudicators' orders being dealt with in other ways, to the extent that those ways might be available. Applying this reasoning in the present case, we are of the view that cl 9 does not disclose an implicit intention contrary to the operation of s 30(1) of the Interpretation Act, which we have set out above. In summary, it does not appear "clearly" or "plainly" from the text and context of these clauses in Sch 3 to the 2015 Act that they are designed to operate in a manner that is inconsistent with the maintenance and enforcement of obligations accrued under the 1996 Act, as provided by s 30(1) of the Interpretation Act."
18. In Anderson, the Tribunal held that the order of the Strata Adjudicator "is taken to have been made by the Tribunal under s 232 of the 2015 Act, which appears to be the provision corresponding to s 138 of the 1996 Act" (at para [36]) by reason of cl. 9 of sch. 3 of the SSMA 2015, because the order was in force immediately before 30 November 2016, when cl. 9 of sch 3. of the SSMA 2015 commenced.
19. However, the fact that the orders made by Senior Member Rosser on 27 April 2016 became orders under s 232 of the 2015 Act by reason of the operation of cl 9 sch 3 of the SSMA 2015 does not mean that the Tribunal can simply disregard the provisions of s 172 of the SSMA 1996. If it were to do so, as the owners corporation urges, the effect of such an interpretation would be that the expiration period for orders of a Strata Adjudicator under s 172 of the SSMA 1996 would have no effect, because the orders would have exactly the same status as an order of the Tribunal under s 232 of the SSMA 2015 made after 30 November 2016.
20. In Anderson, the Tribunal clearly stated at paragraphs [48] and [52] that the provisions of s 172 of the SSMA 1996 remained applicable by reason of Section 30 (1) (b) of the Interpretation Act 1987 (NSW) which relevantly states: "30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not: … (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or …"
21. The submission of the owners corporation that the "facultative" nature of cl 9 of sch 3 means that s 172 of the SSMA 1996 can be disregarded and the owners corporation has available to it "all the relief under the 2015 Act in respect to that order" takes paragraphs [64] and [65] out of context. What the Tribunal is referring to in paras [64]-[65] (with reference to Shahbazian at [81]) is that there may be other remedies or methods of enforcement of orders of a Strata Adjudicator "if they are available", that may not have been available prior to 30 November 2016 such as the imposition of a civil penalty for failure to comply with Tribunal orders under s 72 of the NCAT Act.
22. However, remedies or methods of enforcement for failure to comply with the orders of a Strata Adjudicator are only "available" if the order of the Strata Adjudicator (or the Tribunal substituting orders on appeal from a decision of a Strata Adjudicator) remained extant. By reason of the operation of s 172 of the SSMA 1996 the orders made by Senior Member Rosser ceased to have any effect on or about 27 April 2018. Had the hearing took place on 26 April 2018 or earlier, the orders of Senior Member Rosser would still have been extant, but that was not the case.
23. Accordingly, as of 18 September 2018 when this matter was heard, the Lot owner had not failed "to carry out work required to be carried out under an order made under this Act" in s 120 (4) of the SSMA 2015, and the Tribunal has no power to make access, work and compensation orders under ss 124 and 132 of the SSMA 2015 by reason of non-compliance with the orders of 27 April 2016.
24. The owners corporation submits that the decision of Bruce J in The Owner Strata Plan No 52896 v Goldbind Pty Ltd and Anor (unreported, 1 May 1998, File No 13405/97-'Goldbind') supports its submission that cl 9 sch 3 of the SSMA 2015 has a "facultative" effect, allowing the owners corporation to seek "any remedy" under the SSMA 2015, because the orders of Senior Member Rosser dated 27 April 2018 had not expired and remained extant.
25. The authority of Goldbind is of no assistance to the Tribunal. Goldbind involved an appeal by stated case to the Supreme Court brought by an owners corporation against an order of the Strata Schemes Board dismissing an appeal from a decision of the Strata Titles Commissioner regarding a Lot owner restoring common property. The basis of the decision by the Strata Schemes Board was that it had no jurisdiction, as the appeal was brought under s 177 of the SSMA 1996 rather than under the provisions of the Strata Schemes (Freehold Development) Act 1973 (NSW).
26. After briefly setting out the facts; the legislative provisions (involving the savings and transitional provisions of the SSMA 1996); and the submissions of the owners corporation (there being no appearance by the Lot owners), in 1 brief paragraph the Court accepted the submissions of the owners corporation that by reason of the savings and transitional provisions of the SSMA 1996, an appeal could in the circumstances of the matter be brought under s 177 of the SSMA 1996 even if that jurisdiction was concurrent with the appeal process under the Strata Schemes (Freehold Development) Act 1973 (NSW).
27. The decision in Goldbind makes no reference to any equivalent provision to s 172 of the SSMA 1996; nor is there any detailed reasoning in the decision analysing the effect of the savings and transitional provisions under the SSMA 1996 and how such provisions affect rights and remedies.

Can The Orders of Senior Member Rosser dated 27 April 2016 Be Made Nunc Pro Tunc?

1. The owners corporation submits that if the orders of Senior Member Rosser dated 27 April 2016 had expired or were not in force as of 18 September 2018, the Tribunal could "make an order nunc pro tunc so that it has the effect as at the date of commencement of the proceedings. In this regard, the owners corporation relied upon Lavery v Dimension Tilers Pty Ltd [2015] NSWCATCD 59.
2. Nunc Pro Tunc ('now for then') is a principle that allows Courts to cure a procedural defect by ordering that a judgment is entered or a document enrolled so as to have the same legal force and effect as if it had been entered or enrolled on an earlier day. However, the principle only applies to procedural irregularities, not fundamental irregularities or irregularities that bear on the issue of jurisdiction: Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 144.
3. The submission that the Tribunal has the power to invoke this principle to make the orders of Senior Member Rosser dated 27 April 2016 into orders dated 20 April 2018 is misconceived. The date of the orders is, by reason of s 172 of the SSMA 1996, fundamental to the issue of jurisdiction and well beyond a mere procedural defect.
4. The decision of the Tribunal in Lavery v Dimension Tilers Pty Ltd [2015] NSWCATCD 59 (Lavery) is not of assistance, because it involved the Tribunal granting leave for a homeowner to continue proceedings in the Tribunal under the Home Building Act 1989 (NSW) ('the HBA') in circumstances where the builder disputed that the claim had been "investigated" prior to the Registrar of the Tribunal accepting the claim under s 48J of the HBA. In any event, the Tribunal made clear that the issue of compliance with s 48J of the HBA was a mere procedural irregularity: Lavery at [10].

Can the Tribunal Make Access And Compensation Orders By Making Anew the Same Findings as Senior Member Rosser?

1. The owners corporation submits that the Tribunal can make "the same findings" as Senior Member Rosser, and on that basis make an order under s 124 (1) of the SSMA 2015 for access for the owners corporation to carry out work referred to in s 122 (1) (a) of the 2015 Act.
2. Section 122 of the SSMA 2015 states as follows: 122 Power of owners corporation to enter property in order to carry out work (1) An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel of the scheme for the purpose of carrying out the following work: (a) work required or authorised to be carried out by the owners corporation in accordance with this Act (including work relating to window safety devices and rectification work carried out under Part 11), (b) work required to be carried out by the owners corporation by a notice given to it by a public authority, (c) work required or authorised to be carried out by the owners corporation by an order under this Act. (2) An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel for the purpose of determining whether any work is required to be carried out by the owners corporation in accordance with this Act. (3) In an emergency, the owners corporation may enter any part of the parcel for those purposes at any time. (4) In a case that is not an emergency, the owners corporation may enter any part of the parcel for those purposes with the consent of any occupier of that part of the parcel or, if the occupier does not consent, in accordance with an order of the Tribunal under this Division. (5) A person must not obstruct or hinder an owners corporation in the exercise of its functions under this section. Maximum penalty: 5 penalty units. (6) An owners corporation is liable for any damage to a lot or any of its contents caused by or arising out of the carrying out of any work, or the exercise of a power of entry, referred to in this section unless the damage arose because the owners corporation was obstructed or hindered.
3. The owners corporation submits that the balcony venetian blinds were installed by a method that was an unlawful addition to common property and that the bamboo privacy screen was either an unlawful alteration of common property because it had been affixed to the metal fence; or was in breach of by-law 3.1 of the registered by laws and by-law 12.1 of the Community Management Statement.
4. The Lot owner submits that the balcony blinds now come within s 109 of the SSMA 2015 as "cosmetic work" that does not require consent of the owners corporation and even if the blinds did not fall within the definition of "cosmetic work" the Tribunal should exercise its discretion under s 232 of the SSMA 2015 for an order that the blinds not be removed.
5. Further, the Lot owner submits that "the first time" the owners corporation had raised s 122 (1) (a) of the SSMA 2015 as the basis that the owners corporation could enter the Lot and do work to restore common property to remedy an allegedly unlawful alteration to common property was in submissions. The Lot owner submitted that the owners corporation could not simply invoke s 122 (1) (a) of the SSMA 2015 to access the Lot to restore common property, in the absence of an order of the Tribunal requiring or authorising the owners corporation to carry out work; or there being some need to have access to the Lot to comply with the duty to maintain and keep common property in a state of good repair under s 106 of the SSMA 2015.
6. The Tribunal is not satisfied that it can make an order under s 122 of the SSMA 2015 "on the same findings" as Senior Member Rosser or by making its own findings.
7. The owners corporation seeking such an order raises a fundamental issue of procedural fairness. The orders sought by the owners corporation when the application was filed 20 April 2018 made no specific reference to an order being sought under s 124 of the SSMA by reason of s 122 of the SSMA 2015, or that it was seeking such an order as an alternative to its argument that it should be ordered access (and compensation) to perform work that the Lot owner should have performed pursuant to the orders of Senior Member Rosser on 27 April 2016.
8. The application filed by the owners corporation makes a reference to "any other orders the Tribunal sees fit". However, such a reference does not give the owners corporation carte blanch to seek in submissions any orders under any provision of the SSMA 2015.
9. Further, on 7 September 2018 at an interlocutory hearing before Senior Member Paull, the owners corporation was granted leave to amend its application to "include the insertion of 2A if necessary the access orders in paragraph 1 be made nunc pro tunc as at the date of commencement of those proceedings".
10. The reasons of Senior Member Paull dated 7 September 2018 in granting leave to amend relevantly state: "On 17 August 2018 the applicant wrote to the respondent putting her on notice that it sought to amend the application, albeit in different form to the amendment placed before the Tribunal today and served on the respondent last night. In short the substantive application is about access and work orders and revolves around ss 120, 122, and 124 of the strata schemes legislation. After much debate and discussion the applicant confined its proposed amendment to the insertion of the words: "2A If necessary the access orders in paragraph 1 be made nunc pro tunc as a the date of commencement of these proceedings". The respondent opposes this amendment on the basis that it is alleged the Tribunal has no jurisdiction to make such an order. This legal argument was not supported by authority. The Tribunal's obligation to allow all parties to mount their best case and to ensure issues are ventilated must be tempered with the consideration that this cannot disadvantage a party. The amendment in question rests solely on a legal argument and the parties have until 18 September 2018 to prepare for this argument. I therefore find that the amendment should be allowed."
11. The owners corporation did not seek leave to further amend its application at the hearing on 18 September 2018. The focus of its case, and the written submissions were clearly that the application was brought on the basis the Lot owner had failed to comply with an order of the Tribunal (s 120 (4) of the SSMA 2015) and the owners corporation should be ordered access under s 124 of the SSMA 2015 to take its own measures to ensure to enforce compliance with the order, not that it had an independent right to gain access and perform work under s 122 of the SSMA 2015.
12. Although the Tribunal is not a court of strict pleading and is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 38 (4) of the NCAT Act) it must apply principles of procedural fairness and natural justice, as well as giving parties a reasonable opportunity to be heard and have submissions considered (s 38 (5) of the NCAT Act). Ambush is not an acceptable feature of modern litigation and a party is entitled to know the case it has to meet: Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34 at [33].
13. As the owners corporation did not ever clearly identify access under s 124 of the SSMA 2015 on the basis of an independent right under s 122 of the SSMA 2015 and its application to amend to raise s 122 of the SSMA 2015 was not granted by the Tribunal on 7 September 2018, I am not satisfied that it is procedurally fair to the Lot owner to consider the alternative basis to the claim raised by the owners corporation in submissions.
14. The owners corporation submits that it is necessary to comply with its duty to maintain common property under s 106 of the SSMA 2015 that it have access to the Lot so that it can remove the balcony blinds and bamboo privacy screen which were unauthorised alterations to common property: The Owners-Strata Plan No 21702 v Krimbogiannis [2014] NSWCA 411 at [15]; Davenport v The Owners-Strata Plan No 536 [2018] NSWCATAP 301 at [35]; John Maait Properties Pty Ltd v The Owners-Strata Plan No 50396 [2019] NSWCATAP 26 at [23]-[24].
15. However, not only must the Tribunal be satisfied that it is necessary for the owners corporation to comply with its duty under s 106 of the SSMA that the balcony blind and bamboo privacy screen be removed by the owners corporation and the common property be restored, but that the Tribunal should exercise its discretion in favour of the owners corporation as s 124(1) of the SSMA 2015 refers to "may" rather than "must". Such issues cannot be fairly or properly adjudicated upon in these proceedings.
16. Rather, if the owners corporation now seeks either orders under s 232 of the SSMA 2015 that the Lot owner remove the balcony venetian blind and bamboo privacy screen; or that it should obtain access to do such work under ss 124 and 122 of the SSMA 2015; the owners corporation can file a fresh application to the Tribunal. The owners corporation can then identify the provisions of the SSMA 2015 or by-laws that it says the Lot owner has contravened, and provide evidence as to why (if breach is established) the Tribunal should exercise its discretion to make the orders sought. The Lot owner can respond accordingly. In that context, the Tribunal can also consider the provisions of s 109 of the SSMA 2015.

CONCLUSION

1. The application by the owners corporation for orders under ss 124 and 132 of the SSMA 2015 is dismissed.

COSTS

1. As both parties are legally represented, it is appropriate to make directions regarding any costs application. The Tribunal makes the following directions: 1. Any costs application by the respondent is to be made in writing to the Tribunal supported by written submissions not exceeding 5 pages and with a copy sent to the other party on or before 14 days from the date of this decision. The submission is to include reference as to whether the party submits to the issue of costs being determined without a further oral hearing under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. If any costs application is made, the applicant is to file and serve written submissions in reply on the issue of costs not exceeding 5 pages on or before 14 days thereafter. 3. Subject to the submissions of the parties, the Tribunal may determine the issue of costs on the papers in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).

ORDERS

1. The Tribunal makes the following orders: 1. Application dismissed. 2. Any costs application by the respondent is to be made in writing to the Tribunal supported by written submissions not exceeding 5 pages and with a copy sent to the other party on or before 14 days from the date of this decision. The submission is to include reference as to whether the party submits to the issue of costs being determined without a further oral hearing under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). 3. If any costs application is made, the applicant is to file and serve written submissions in reply on the issue of costs not exceeding 5 pages on or before 14 days thereafter. 4. Subject to the submissions of the parties, the Tribunal may determine the issue of costs on the papers in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).

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: 07 June 2019