The Owners - Strata Plan No 70871 v Turek - [2020] NSWSC 1027 - NSWSC 2020 case summary

Supreme Court of NSW|2020-08-03|Before: Adamson J

Solicitors: Bannermans Lawyers (Plaintiff) Hones Lawyers (Defendants) File Number(s): 2020/94950 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Appeal Panel Citation: The Owners - Strata Plan No 70871 v Turek [2020] NSWCATAP 28; The Owners - Strata Plan No 70871 v Turek (No 2) [2020] NSWCATAP 89 Date of Decision: 28 February 2020; 19 May 2020 Before: F Marks, Principal Member; M Gracie, Senior Member File Number(s): AP 19/53517

Introduction

By amended summons filed on 22 May 2020, the plaintiff, The Owners - Strata Plan No 70871 (the OC) seeks leave to appeal against a decision of the Appeal Panel of the Civil and Administrative Tribunal dismissing an appeal from the orders made by Senior Member Vrabac of the Consumer and Commercial Division of the Tribunal. Michael and Louise Turek, who are the owners of Lot 59 in Strata Plan No 70871, have been joined as defendants to the proceedings.
This Court's jurisdiction arises under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act), which provides that a party to an external or internal appeal, may, with leave of the Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings. Pursuant to s 83(3), the Court may make "such orders as it considers appropriate on the appeal, including (but not limited to) an order affirming, varying or setting aside the decision of the Tribunal" or remitting the matter to the Tribunal.

The background

The defendants own unit 59 in Strata Plan 70871. The building is a mixed commercial/residential multi-level building in Chippendale. The defendants operate a mini-supermarket/convenience store from their unit, which is on the ground floor of the building. The defendants wanted to be allowed to store commercial waste in two bins in the bin area within the common property where the residential rubbish bins were stored.

The commencement of proceedings

On 24 April 2019, the defendants commenced proceedings SC19/19280 by filing an application in the Tribunal for an order pursuant to s 131 of the SSM Act that they be granted a licence to store the rubbish bins on common property. The matter was listed for hearing before Senior Member Burton on 27 August 2019.

The first application for adjournment

On that day, the defendants applied for an adjournment of the proceedings as they were not ready for the hearing. Senior Member Burton adjourned the proceedings and made directions, including that the matter be listed on the first available date after 8 October 2019.

The hearing on 1 November 2019

The parties received a listing notice specifying 1 November 2019 as the date for the hearing. On that day, Mr Notley appeared for the defendants and Mr Bannerman appeared for the OC before Senior Member Vrabac. Mr Notley did not initially apply for an adjournment of the proceedings. However, at a relatively early stage of the hearing, Mr Bannerman, solicitor, who appeared for the OC, directed the Tribunal's attention to s 131 (set out above) and informed the Tribunal that the defendants had not submitted any proposed licence to the OC and that, accordingly, the Tribunal could not make the orders that were being sought by the defendants. He submitted that, in those circumstances, the Tribunal had no jurisdiction to make an order under s 131 and that the application ought be dismissed. He referred the Tribunal to the decision of Eadie v Harvey [2017] NSWCATAP 201 (Eadie) in which the Appeal Panel dismissed an appeal from a decision of the Tribunal dismissing an application by unit holders for a licence to park their cars permanently on common property on the ground that the appellants had never applied for such a licence from the OC and that, therefore, the Tribunal could not made an order under s 131. As a consequence of these submissions, Mr Notley applied for an adjournment.
In response to these submissions, Senior Member Vrabac said: "It looks, looks like, ah, Mr Notley to me it will be an adjournment, licence to them, it has to go to an EGM."
There was then a discussion about a timetable, after which this exchange occurred: "Mr Bannerman: I, I have to take instructions from my client. I can't say if my client is going to even agree to convene a meeting to consider it. They don't have to, but, but I would encourage them to. Member: Then we will order one. Mr Bannerman: Okay, okay. But I mean... Member: Your client can't refuse everything. Mr Bannerman: Yes, okay. Fine. But… Member: Then no point in having me here. Mr Bannerman: Okay, understood. But, but yeah, I mean, well, we can set a timetable, um and we can convene a meeting, it takes about three weeks or so. Member: And, and then you can ask for an extension. I'm not saying you have to do anything, but something will have to be done. Member [sic, Mr Bannerman]: I, I haven't heard yet that we won't call a meeting to consider it. Then the licence will come to me. Mr Bannerman: Yep. Member: Okay, so if you say you need two weeks, what would you need, four? That would be six weeks. Mr Bannerman: Oh, I'd probably need 5, because we need to convene the general meeting and then prepare our evidence after that."
The following exchange also occurred: "Member: You're fine with that? So direction I am making to you is, the Respondent, is to call, arrange an EGM and, ah, what would you do, you will decide whether to approve or not to approve the draft license. Mr Bannerman: Yes, yes. Member: Or amendments or whatever. Mr Bannerman: Sure."
Mr Bannerman sought the costs of that day.

The orders made by the Tribunal

On 1 November 2019 the Tribunal made the following orders: "1. By Determination of member, on 01 November 2019 the hearing was adjourned to a date to be fixed by the Registrar. 2. The applicant shall provide to the respondent and the Tribunal, either in person or by post, a draft license [sic] for the proposed use of waste bins on or before 22-Nov-2019. 3. The respondent shall arrange an EGM on or before 17-Jan-2020 to consider the proposed waste bins license. 4. Costs of today are costs in the cause."
The Tribunal noted, at the conclusion of the orders: "A separate written notice of the new hearing will be sent to you in the near future."

The OC's request for reasons

By letter dated 4 November 2019, the OC sought reasons for the orders. By letter dated 8 November 2019, the Tribunal wrote to the OC and said, in part: "There are no reasons to be provided for the directions made by consent on 1 November 2019."
Later that day, Mr Bannerman wrote to the Registrar of the Tribunal and said that, far from consenting to the orders, the OC had sought that the proceedings be dismissed. He reiterated his request for reasons. By letter dated 18 November 2019, the Tribunal wrote to Mr Bannerman to say that a recording of the hearing on 1 November 2019 had been ordered and that, once the recording had been listened to, the Tribunal would determine the "proper response". By letter dated 29 November 2019, Senior Member Vrabac wrote: "Further to the correspondence from the Tribunal to the Respondent on 18-NOV-2019, written reasons will be provided to the parties for the decision made at the hearing on 1-NOV-2019."
The terms of this letter are consistent with what I consider to be the true position: that Mr Bannerman did not consent to any of the orders made by the Senior Member.

The reasons of the Tribunal

On 5 December 2019, written reasons dated 28 November 2019 were provided to the parties. Of present relevance, the Tribunal said: "32 I agreed with the respondent's contention that the matter was not ready to run under s 131(2)(b) because the applicant has not put a licence for approval to the owners corporation or a by-law under s 149 SSM Act prior to commencing the proceedings. 33 The respondent referred to the Appeal Panel's decision wherein it was held that the Tribunal must not make any decision in respect of the two sections (131 and 149) unless the owners corporation has refused to grant a licence or has unreasonably refused to have made a common property rights by-law, Eddie [sic] v Harvey [2017] NSWCATAP 201. 34 The respondent sought to have the matter dismissed and a cost order made in his favour for costs of the day thrown away. 35 The application for dismissal was not granted in line with the aspiration of quick and cheap resolution of the issues in the proceedings. My view was that if the proceedings were dismissed the applicant would have to prepare a license for the owners corporation to consider. An EGM would have to be called for by the applicant and if the license was not granted at the meeting, fresh proceedings would have to be commenced by the applicant. 36 The applicant stated that the owners corporation refused permission to put its waste bins in the waste room when it was asked by the applicant. He argued that was sufficient for the purposes of s 131 and the matter should proceed today. 37 I was not persuaded by the applicant's submission and his argument when they were considered against the decision in Eddie's [sic] case. 38 The respondent applied for the costs of the day thrown away. 39 The applicant opposed the costs application. He submitted that the respondent was aware of there being no licence put to the owners corporation to consider prior to the hearing today. The contention was that the respondent should have notified the applicant of this omission prior to today's hearing. 40 There is very little merit in this argument. The respondent could have alerted the applicant to the shortcoming in the applicant's case. There is no formal requirement to do it and no evidence as to when the respondent itself had the authority of Eddie's [sic] case to hand. 41 I note the applicant's bold submission, which was not pressed, that the respondent pays his costs because of the respondent's failure to inform the applicant of its intention to raise the issue of jurisdiction at hearing rather than prior to the hearing. 42 The respondent's argument on costs thrown away for the day had considerable merit and force but not as significant as it had on 28 August 2019 when costs thrown away were ordered by Senior Member Burton. In the exercise of the discretion, I have in determining costs I decided to leave that matter for determination on the next occasion or at the completion of the proceedings. 43 Costs orders in the Tribunal are made pursuant to s 60 of the CAT Act. It is not decided here whether the respondent will or will not be able to make out the criteria set out in s 60(3)(b) for costs of today at the conclusion of the matter. 44 The proceedings were adjourned in the interests of justice. The applicant, in my view, will get a conclusion of the waste bin issue quicker and cheaper if the proceedings were adjourned rather than if they were dismissed."

The OC's application for a stay of order 3

The OC applied for a stay of order 3 (which required it to hold a meeting) which was heard on 10 December 2019 and refused by Principal Member Suthers. The Principal Member addressed the question of whether the OC had consented to order 3 and found that it had not, as appears from the following passage at [17] of the reasons: "The Appellant [the OC] argues, and I accept, that the exchange outlined above does not indicate that the Appellant consented to the making of Order three. Rather, it indicates that the member advised the parties that an order would be made and that the solicitor for the Appellant then acquiesced and engaged with the Tribunal in arranging a timetable for compliance."

The events subsequent to the Tribunal's decision

On 21 November 2019, the defendants served on the OC a draft licence for the storage of two waste bins in the garbage room of the ground floor of the building, which formed part of the common property. On 17 January 2020 an EGM was held for the purposes of considering whether to grant a licence to the defendants. They attended the meeting and were asked questions about it. The minutes do not record that any relevant resolution was put to the meeting. The minutes recorded the "general business" as follows: "It was noted that pursuant to order number 3 of the Tribunal orders made on 1 November 2019, without admitting the validity of the order, the owners corporation considered the draft commercial waste bin space licence for the garbage room."
On 28 January 2020 the strata manager wrote to the defendants and asked questions about the licence. On 14 February 2020, the defendants' solicitors wrote to the strata manager confirming the answers to questions (which it was alleged had been provided at the EGM). The letter concluded: "In the absence of any further correspondence from your firm, or the Owners Corporation, we assume that the Owners Corporation will continue to refuse to grant our clients a licence to use the common property in the manner proposed in the draft licence. In this regard we note the emphatic position adopted by the Owners Corporation to date, including at the recent hearing of your client's appeal before the Appeal Panel of the Civil and Administrative Tribunal in proceedings AP 19/53517, that, under no circumstances, will the Owners Corporation permit our clients to store garbage bins on any of the common property."
The uncontested evidence of Mrs Turek is that no response has been received to that letter.

The proceedings before the Appeal Panel

On 28 November 2019 (before receiving the Tribunal's reasons) the OC applied for leave to appeal to the Appeal Panel. This appeal was an "internal appeal" within the meaning of s 32(1) and (5). The application for leave referred to "attached submissions" instead of specifying any grounds of appeal.
The appeal was heard by the Appeal Panel (which was constituted by Principal Member Marks and Senior Member Gracie) on 6 February 2020. As before, Mr Bannerman appeared for the OC and Mr Notley appeared for the defendants. The Appeal Panel gave reasons on 28 February 2020 and refused leave to appeal, dismissed the appeal and granted liberty to apply with respect to costs.
In its reasons for decision at [17], the Appeal Panel set out the issue on appeal, which was accepted by the OC to be accurate: "At the commencement of the hearing we suggested to Mr Bannerman that our understanding of the basis for the appeal, as best we could comprehend it, was an argument based upon the construction of section 131 of the SSM Act, namely that the owners corporation could not be said to have refused to grant a licence to use the common property because no license agreement had been submitted to it by the respondents or their tenant. Mr Bannerman embraced this as encapsulating the substantial ground of appeal."
The Appeal Panel found, at [19], that the decision was "interlocutory" because it concerned the granting of an application for adjournment (order 1) and "the making of orders in the nature of case management orders directed towards the preparation of the proceedings for hearing" (orders 2 and 3). It referred to the requirements for leave in cl 12(1) of Sch 4 (set out below). The Appeal Panel concluded, after setting out s 36 at [22]: "In our opinion the manner in which the Senior Member conducted the proceedings and the Orders issued by him which are the subject of the appeal represent an orthodox application of the provisions of section 36 of the CAT Act. The Senior Member clearly focused on the real issues in the proceedings and made orders to facilitate the determination of those issues in a just, efficient and cost-effective manner. The decision of the Senior Member was clearly within discretion and involved an appropriate application of section 36."
The Appeal Panel also said, at [24]: "No question of principle arises in the circumstances of these proceedings, no questions of public importance or matters of administration of policy or any other clear injustice has occurred, for reasons which we discuss later. As will be seen, there can be no justification for the grant of leave to appeal, especially as, will be seen, we conclude that there is no merit in the appeal."
The Appeal Panel addressed the construction of s 131 of the SSM Act and concluded at [28]: "Whilst the provisions of section 131 certainly refer to the terms and conditions applying to the use of the common property, there is no requirement that a form of licence agreement embodying any particular terms and conditions be forwarded by the respondents to the appellant as a precondition to the grant of jurisdiction and power in this Tribunal to deal with the matter."
The Appeal Panel also addressed the issue of whether the OC (through its solicitor, Mr Bannerman) had consented to orders 2 and 3 made by the Tribunal. The Appeal Panel noted that Mr Bannerman had "reluctantly" accepted, in the hearing before the Appeal Panel, that he had "acquiesced" in the making of these orders. The Appeal Panel concluded at [40]: "To the extent that Mr Bannerman sought to set aside the making of those orders for the purpose of these appeal proceedings, in circumstances where he informed the Member that his client acquiesced in the making of those orders, which we understand as best we can to be the basis for such a submission, that submission must be rejected."
The Appeal Panel rejected the OC's submission that the proceedings were lacking in substance or "otherwise misconceived".
The Appeal Panel, when addressing the costs order made by the Tribunal, referred to the apparent inconsistency between [42] and [43] of the reasons of the Tribunal, which indicated that costs were to be reserved and the form of the order, which was that the costs be costs in the cause. The Appeal Panel purported to resolve the discrepancy at [46] when it said: "… [I]t is clear that the Senior Member in making an order that the costs of the proceedings before him that day become costs of the cause, should not be taken to have made any determination that the more usual meaning of the expression "cost of the cause" should apply. That more usual meaning is that the outcome of the proceedings would determine whether an appropriate costs order should be made subject however to the particular circumstances of the proceedings. What the Senior Member clearly had in mind as discussed in his written reasons is that he intended to reserve the question of costs as they applied to the proceedings before him that day for determination at the conclusion of the overall proceedings. Seen in this light this was an exercise of discretion which was clearly available to the Senior Member in all the circumstances of the proceedings and is not amenable to any successful appeal."
Notwithstanding the Appeal Panel's interpretation of the order as meaning that costs were reserved, the Appeal Panel did not amend the order made by the Tribunal, which remained in its original form, namely that the costs of 1 November 2019 be "costs in the cause".
Although it decided to refuse leave to appeal and made an order to that effect, the Appeal Panel, curiously, also dismissed the appeal. I understand the intent of the orders was to refuse leave. The Appeal Panel invited submissions on costs. Ultimately, on 19 May 2020, it ordered the OC to pay the defendants' costs of the proceedings in the Appeal Panel. It found special circumstances which warranted an order for costs within the meaning of s 60 on two bases: that the notice of appeal had failed to specify grounds and that none of the grounds of appeal had been made out. The Appeal Panel said: "[29] In determining whether special circumstances exist which would justify the making of an adverse costs order we take into account a number of matters. [30] In filing a Notice of Appeal which was fundamentally defective, and in failing otherwise to specify the grounds of appeal the respondents were unnecessarily disadvantaged in the preparation of their resistance to the appeal. In addition, these deficiencies also inhibited this Tribunal in dealing with the appeal proceedings in a timely fashion. Furthermore, in so doing Mr Bannerman and his client breached the provisions of section 36 (3) of the CAT Act. It follows that the provisions of section 60(3)(a), (b) and (f) have been satisfied, and these circumstances justify the making of an adverse costs order. [31] In addition, the proceedings were unnecessarily complicated and the hearing unnecessarily prolonged because of the submissions made by Mr Bannerman dealing with the 'new evidence' application, the 'summary dismissal' point and the section 55 application. None of these matters had any merit. If the submissions had been made by a party without legal knowledge or unrepresented, we may have arguably considered them in a different light when determining whether or not the mere fact that they were made would constitute special circumstances. However, the submissions were made by a solicitor. For the reasons which we articulated in the appeal decision and which we have summarised above, they were misconceived and without merit. As such, they also justify a conclusion that special circumstances exist which justify the making of an adverse costs order by applying section 60(3)(c) and (e). [32] For all these reasons we conclude that special circumstances apply to the appeal proceedings as provided for in section 60 of the CAT Act. Costs should follow the event and the appellant must pay the respondents' costs of the appeal. We propose to order accordingly."

Civil and Administrative Tribunal Act

Section 28 provides that the Tribunal has four types of jurisdiction: general, administrative review, appeal (comprising internal and external appeal) and enforcement. The SSM Act does not provide that the Tribunal's jurisdiction with respect to decisions of the owners corporation fall within its administrative review jurisdiction. Accordingly, the effect of s 9(1) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) is that the jurisdiction under s 131 of the SSM Act is not part of the Tribunal's administrative review jurisdiction and therefore, the ADR Act does not apply. In these circumstances, Senior Member Vrabac was exercising general jurisdiction and the Appeal Panel was exercising appeal jurisdiction.
Section 29 provides for general jurisdiction and relevantly provides: "29 General jurisdiction (1) The Tribunal has general jurisdiction over a matter if - (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal. Note. The general jurisdiction of the Tribunal includes (but is not limited to) functions conferred on the Tribunal by enabling legislation to review or otherwise re-examine decisions of persons or bodies other than in connection with the exercise of the Tribunal's administrative review jurisdiction. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction - (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. (3) A general decision of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction. (4) A general application is an application made to the Tribunal for a general decision. (5) Nothing in this section permits general jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act."
Section 36 provides: "36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it - (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal - (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions."
Section 38 provides in part: "38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. … (4) The Tribunal 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. (5) The Tribunal is to take such measures as are reasonably practicable - (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. …"
Section 39 provides for an inclusive definition of "application" as follows: "For the purposes of this Act, an application to the Tribunal includes a complaint, referral or other mechanism (however expressed) by means of which enabling legislation provides for a matter to be brought to the attention of the Tribunal for a decision."
Section 51 provides that "[t]he Tribunal may adjourn proceedings to any time and place …".
Section 55 provides that the Tribunal may dismiss any proceedings before it, including if it considers them to be "frivolous or vexatious or otherwise misconceived or lacking in substance".
The Tribunal has a limited power to award costs. Section 60 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. …"
Section 62 requires the Tribunal to give written notice of its decisions and to provide reasons on request.
Section 80(2) provides: "Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."
Schedule 4 makes provision for the Consumer and Commercial Division. Clause 3 of Sch 4 confers the Tribunal's functions under the SSM Act on the Consumer and Commercial Division of the Tribunal.
Clause 12(1) of Sch 4 provides: "12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because - (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds."

SSM Act

The SSM Act replaced the Strata Schemes Management Act 1996 (NSW) (the 1996 Act). Part 6 of the SSM Act, entitled "Property Management", includes s 112, which empowers an owners corporation to grant a licence to an owner or occupier of a lot in the strata scheme to use common property in a particular manner or for particular purposes "if the owners corporation has approved the granting of the licence by a special resolution": s 112(1).
Section 5 of the SSM Act makes provision for resolutions of owners corporations. Section 5(1) provides that: "In this Act, a resolution of an owners corporation is a special resolution if - (a) it is passed at a properly convened general meeting, and (b) not more than 25% of the value of votes cast are against the resolution."
Section 19 of the SSM Act empowers the secretary of an owners corporation to convene a general meeting of the owners corporation at any time. Further, s 20 of the SSM Act provides: "(1) The Tribunal may, on application by an owners corporation or an owner or mortgagee of a lot in a strata scheme, order a person to convene and hold a meeting of the owners corporation within the time specified in the order if a meeting has not been convened and held in accordance with this Act. (2) The person who is to convene and hold the meeting is to be a person nominated by the applicant, or appointed by the Tribunal, who has consented to the nomination or appointment."
Part 6 confers several powers on an owners corporation. In respect of each power, there is a corresponding provision which entitles the person (whether the owners corporation or unit holder) to apply to the Tribunal for an order to do the thing which the original provision empowered the owners corporation to do. Division 6 of Part 6, "Orders about property" confers power on the Tribunal to do various things, including granting a licence over common property under s 112. Section 131 allows a lot owner whose application for a licence has not been approved by the owners corporation under s 112 to apply to the Tribunal for such an order.
Part 12, entitled "Disputes and Tribunal Powers" contains Division 4, "Orders that may be made by the Tribunal" which includes the sections extracted below: "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. … 231 Interim orders (1) If an applicant for an order by the Tribunal under this Act requests the making of an interim order and the Tribunal is satisfied on reasonable grounds that urgent considerations justify the making of the order, the Tribunal may - (a) make an interim order in the form of any order that could otherwise be made by the Tribunal… … 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 - … (e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme, (f) an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act. (2) Failure to exercise a function For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if - (a) it decides not to exercise the function, or (b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application. (3) Other proceedings and remedies A person is not entitled - (a) to commence other proceedings in connection with the settlement of a dispute or complaint the subject of a current application by the person for an order under this section, or (b) to make an application for an order under this section if the person has commenced, and not discontinued, proceedings in connection with the settlement of a dispute or complaint the subject of the application. … 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."
Schedule 1 of the SSM Act, "Meeting procedures of owners corporation", includes cl 4, which relevantly provides: "4 Inclusion of matters on agenda (1) Any owner, or any person entitled to vote at a general meeting of an owners corporation, may require a motion to be included in the agenda of the next general meeting of the owners corporation. (2) The requirement is to be made by written notice given to the secretary of the owners corporation that - (a) sets out the required motion, and (b) states the name of the person making the requirement, and (c) includes an explanation of the motion of not more than 300 words in length. (3) The secretary must give effect to the requirement. …"

The grounds of appeal in the amended summons

The OC alleged the following grounds of appeal: 1 The Appeal Panel erred in law by finding that it is not a precondition to the Tribunal having jurisdiction and power to make an order under s 131(1) of the Strata Schemes Management Act 2015 (NSW) (Management Act) that the lot owner has forwarded a form of licence to the owners corporation prior to making an application for the order. 2 The Appeal Panel erred in law by failing to find that the failure of the defendants to forward a form of licence to the plaintiff prior to making their application for an order under s 131(1) of the Management Act meant their application was misconceived or lacking in substance within the meaning of s 55(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). 3 The Appeal Panel erred in law by failing to find that the Tribunal below erred in law by adjourning, rather than dismissing the proceedings in the Tribunal below under s 55(1) of the CAT Act. 4 The Appeal Panel erred in law by finding that the Tribunal below had jurisdiction to make orders 2 and 3 as case management orders directed towards the preparation of the proceedings for hearing. 5 The Appeal Panel erred in law by failing to find that the Tribunal below had no jurisdiction to make orders 2 and 3, whether under s 38 of the CAT Act, or under any one or more of ss 231, 232(1) and 241 of the Management Act, or otherwise. 6 The Appeal Panel erred in law by finding that the order for costs (order 4) of the Tribunal below was valid, on the basis that an order must be read in light of the Tribunal's reasons, so that, when so read, it has the opposite meaning to its usual meaning. 7 The Appeal Panel erred in law by failing to vary the order for costs in the Tribunal below so as to reflect correctly the Tribunal's reasons. 8 If Appeal Grounds 1 to 5 are upheld then the Appeal Panel erred in law by finding that the plaintiff's appeal was so lacking in merit as to constitute special circumstances which justify the making of a costs order by application of s 60(3)(c) and (e) of the CAT Act.

Whether leave ought be granted

Leave to appeal to this Court is required under s 83. The defendants did not dispute that the appeal raised a question of law but contended that leave ought not be granted since there was no matter of principle at stake which would warrant a grant of leave.
I am persuaded that leave ought be granted in respect of all grounds except 4 and 5, notwithstanding that the substantive decision of the Appeal Panel was merely to refuse leave to appeal. To describe the dispute as being one about two rubbish bins, while correct, does not encompass all that it is about. The application for leave to this Court raises questions: including, whether the Tribunal can adjourn proceedings on the ground that a precondition for the exercise of its power to make the order sought has not yet been fulfilled (grounds 1, 2 and 3) and also the approach to be taken where there is a disparity between the form of an order (including an order for costs) and the reasons given for the order. The application also raises questions about the conduct of practitioners when faced with an order which they have resisted and being required to assist a tribunal with formulating consequential orders.

Whether the Tribunal had power to adjourn the proceedings pending a decision by the OC to refuse the defendants' application for a licence (grounds 1, 2 and 3)

It is plain from the text of s 131, and it was common ground, that the Tribunal may not order the grant of a licence unless the owners corporation has refused to grant a licence to use common property in a manner, for purposes, and on terms and conditions that would enable the current owner or occupier, or generally any owner or occupier, reasonably to use and enjoy that lot. Thus, had the Tribunal purported to grant a licence, notwithstanding that the owners corporation had not yet refused to grant a licence, the Tribunal would have been guilty of jurisdictional error because it would have mistaken the limits of its powers: Colbert v MacDonald [2016] NSWSC 1291 at [86] (N Adams J) and Craig v South Australia (1995) 184 CLR 163 at 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); [1995] HCA 58.
The issue between the parties is whether, if an application has been filed in the Tribunal before the owners corporation has refused any application to it, the Tribunal has power to hold the application in abeyance, by adjourning the proceedings or by not finally hearing them, until there has been a refusal by the owners corporation to grant the licence; or whether the proceedings must be dismissed because they are doomed to fail on the ground that the applicants had no right to the order sought at the time of filing the application. This issue is related to the question whether the Tribunal has jurisdiction in such a case.
In essence, the OC contended that, unless and until the OC had refused the defendants' application for a licence, the proceedings were misconceived and that the only course available to the Tribunal was to strike them out. I understood the OC to submit that the Tribunal, accordingly, had no power to adjourn the proceedings pending consideration by the OC of a licence submitted by the defendants.
The language of the legislation does not support this construction. All it says is that the Tribunal is prohibited from making an order granting a licence unless it is satisfied that the OC has refused to grant a licence to the owner or occupier. The Act does not deprive the Tribunal of the jurisdiction to do anything; all it does, relevantly, is to prohibit the Tribunal from making the order sought in the application. While it would, in my view, be open to the Tribunal to dismiss proceedings under s 55 which have been commenced by application prior to any licence being put by the owner or occupier to the OC, on the grounds that they were potentially hypothetical, I am not persuaded that this was the only course open to the Tribunal. Mr Notley referred me to a number of authorities concerning findings of jurisdictional fact. I do not consider that the issue ought be resolved in terms of jurisdiction. The Tribunal had jurisdiction to entertain the claim but it did not have the power to make an order under s 131 of the SSM Act until the OC had refused to grant a licence.
Section 131 is to be contrasted with provisions which prohibit commencement of proceedings in a particular court. The issue that commonly arises is whether such provisions operate to deny jurisdiction or merely impact on the way in which it is to be exercised: 2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 at [90]-[96] (Leeming JA). In such cases, the relevant principle, as articulated by M Leeming (writing extra-judicially) in Authority to Decide - the Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press) at 41, is: "[W]hat matters is that such provisions give rise to a threshold question of construction and will be construed as denying jurisdiction only if the legislative will is clearly expressed. If the legislative prohibition which has been breached is construed as a denial of jurisdiction, then the court has no choice but to dismiss the proceedings for want of jurisdiction."
This principle was applied in Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 which turned on the construction of s 151C of the Workers Compensation Act 1987 (NSW), which provided that a person was "not entitled to commence proceedings" until six months' notice had been given to the employer. In that case, the Court (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) said: "[35] …Section 151C does not extinguish rights or create new rights. Rather, it postpones the remedy for the common law right to initiate proceedings in a court of competent jurisdiction. The 'right' which s 151C does confer is conferred upon the defendant employer and must be raised in accordance with the procedural rules appurtenant to the particular court. [36] Proceedings commenced by a worker in contravention of s 151C engage the jurisdiction and procedural rules of the court in question. Such proceedings are vulnerable to an application by the defendant to strike out the initiating process or to move for summary dismissal, but they are not a 'nullity'. Once a plaintiff has commenced proceedings, s 151C must be understood in connection with the procedural structure for the conduct of litigation in that court, not in isolation from it. This is not to subjugate the statute to the Rules, but to recognise that the subject matter with which the statute deals is "rights" in the context of actual or apprehended litigation, and to understand the function of the Rules of Court and procedural law in facilitating adjudication of disputed claims."
There is no express prohibition in s 131 on the commencement of proceedings in the Tribunal before the OC has refused the application for a licence. I am not persuaded that there is any basis to imply one.
The Civil Procedure Act 2005 (NSW) does not apply to the Tribunal: s 4(1) and Sch 1 of the Civil Procedure Act. However, as set out above, the Act contains provisions which are similar to s 56 of the Civil Procedure Act, such as s 36. The Tribunal's jurisdiction has been validly invoked by a consideration of what has been claimed, namely, an order under s 131. That the precondition for the making of the order had not been fulfilled at the time at which the application was filed does not deprive the Tribunal of jurisdiction to make an order adjourning the proceedings for the purpose of allowing events to take their course with a view to determining whether the precondition to an order will be fulfilled. As referred to above, it would have been open to the Tribunal to dismiss the defendants' claim under s 55(1)(b) but this was a discretionary matter for the Tribunal, which also had the choice to adjourn the proceedings for a period for the relevant purpose. Parliament has expressly provided in s 36 that the Tribunal is to facilitate the "just, quick and cheap resolution of the real issues in the proceedings". While, if the OC were to grant a licence, the proceedings might turn out to be otiose, it would seem to be inconsistent with the principles set out in s 36 for it to dismiss the proceedings, if the net result were simply to defer the filing of another application by the defendants once they had had their application for a licence refused by the OC.
This analysis is consistent with Eadie, which held, in accordance with the terms of s 131, that the Tribunal had no power to order a licence if the owners corporation had not first refused to grant it and that any such order was ultra vires.
I note for completeness that Mr Kerr SC, who appeared with Ms Apkarian for the OC in this Court, contended that, if an owner were permitted to commence proceedings in the Tribunal before applying to the OC for the relevant licence this would produce the following adverse consequences: "… an owner could file an application and use the resultant proceedings as leverage to obtain the licence at the requisite meetings of the owners corporation. Moreover, the proceedings would exist in some sort of netherworld where the Tribunal may permit them to subsist for an indeterminate period while an applicant lot owner gets its house in order - as has occurred in this case."
These arguments might have been appropriate in support of an application before the Tribunal to dismiss the proceedings pursuant to s 55, if there had been a basis for them. However, the OC maintained, in the Tribunal, the Appeal Panel and in this Court, that the Tribunal was required to dismiss them because the condition precedent to an order under s 131 had not been fulfilled at the time of filing the application. In these circumstances, it is neither necessary nor appropriate to address this submission in this Court which was, in effect, a submission that the present circumstance could give rise to an abuse of the processes of the Tribunal. I did not understand it to be suggested that the defendants had any ulterior motive for commencing proceedings when they did.
For the reasons given above, I am not satisfied that the Tribunal's decision to adjourn the proceedings was legally erroneous.

Whether the Tribunal had power to make order 3, which required the OC to hold a meeting to consider a licence proposed by the defendants (grounds 4 and 5)

The notice of appeal referred, in grounds 4 and 5, to orders 2 (which required the defendants to submit a draft licence) and 3 (which required the OC to convene an EGM and consider the draft licence). Although Mr Kerr challenged both orders, his submissions were principally directed to order 3.
The first question to be addressed in deciding the question of leave is whether the Appeal Panel was correct to find, as it did at [40] of its reasons, that the OC had consented to, or at least acquiesced in, orders 2 and 3. This was the basis for the Appeal Panel's refusal of leave and conclusion that the ground had no merit.
The transcript of the hearing on 1 November 2019 makes plain that Mr Bannerman opposed the adjournment on the bases set out above. However, once it became apparent that the Tribunal proposed to grant the adjournment, Mr Bannerman accepted that the order would be made and did not seek to cavil with the Tribunal's decision to make it. His response to the Tribunal was, in my view, appropriate and indeed required since the Tribunal had indicated that it would adjourn the matter. When the Tribunal proposed that it would order the OC to convene an EGM, Mr Bannerman sought to obtain instructions from the OC as to whether it would agree to do so. As soon as he informed the Tribunal of his desire to obtain instructions, the Tribunal cut him off and told him that it would order an EGM. It is plain from the extracts of transcript set out above, that the Tribunal did not countenance further debate on the topic. Thereafter, Mr Bannerman co-operated with the Tribunal about obtaining suitable dates and the orders were made. Mr Bannerman did not have an interest in order 2, because it was directed to the defendants and did not require the OC to do anything.
In my view, it is plain from the transcript that Mr Bannerman objected to order 3 but was not provided with an opportunity to obtain instructions as to whether the OC proposed to hold an EGM to consider a licence when it was proffered by the defendants. In providing assistance with dates, I regard him as doing no more than accepting the Tribunal's decision to make the order and co-operating with the processes of the Tribunal, as he was obliged to do under s 36(3) of the Act. Thus, to the extent to which the Appeal Panel refused to consider the OC's challenge to order 3 on the misapprehension that the OC had consented to it, the Appeal Panel was in error. Because of its erroneous conclusion, the Appeal Panel did not address the OC's substantive submission that the Tribunal did not have power to make order 3. I consider the Appeal Panel's discretion to refuse leave in respect of this ground to have miscarried. This gives rise to a question of law. However, it does not follow that leave ought be granted.
The question whether the Tribunal had power to order the OC to hold a meeting to consider a licence proposed by the defendants requires consideration of the Act and the SSM Act. Mr Notley contended that order 3 made by the Tribunal was authorised by ss 29, 36 or 38. Mr Kerr submitted that such orders were not appropriately characterised as case management orders and could not otherwise be justified by any of those provisions or by ss 231, 232 or 241 of the SSM Act, which are set out above. The Tribunal's reasons did not identify the power pursuant to which order 3 was made. As referred to above, the Appeal Panel did not address the question of power.
Mr Kerr submitted that s 29 does not itself provide a source of power since its effect is to identify the sources of power available to the Tribunal to make orders when exercising its general jurisdiction, as it was in the present case. He also submitted that neither s 231, nor s 232, nor s 241 of the SSM Act (none of which was relied on by Mr Notley to support order 3) was available to authorise order 3. He contended that s 231 was not apposite as there were no urgent considerations which would warrant an interim order since the licence had not yet been formulated at the time of the order. He submitted that s 232(1) was a limited power which did not extend to the present circumstances since it could not be said that the order was made to "settle a complaint or dispute" about a "failure to exercise a function" because there was no relevant failure on the part of the OC, no licence having yet been put before it for consideration. Further, he relied on The Owners - Strata Plan No. 37762 v Pham [2006] NSWSC 1287 (which considered s 138(1)(a) of the 1996 Act, the statutory predecessor of s 232 of the SSM Act) and the statement by Rothman J at [63] that the words in s 138(1)(a) and (b) "confine the subject matter of the dispute and complaint and are words of limitation". Mr Kerr also referred to Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 at [111] (Parker J) to the same effect.
Mr Kerr contended that the power in s 241 of the SSM Act to order a statutory injunction was not apt to support an interlocutory order since s 241 would appear to authorise only a final order after a hearing.
It is questionable whether the Tribunal had the power to make orders 2 and 3. The Tribunal did not identify any source of power for the order and the Appeal Panel did not address the substantive question of power at all. It was common ground that the OC did convene an EGM to consider the draft licence, within the time provided for by the order. The point is, thus, moot in the present case. In these circumstances, I am not persuaded that leave ought be granted in respect of either ground 4 or 5.
I note for completeness that, even if the Tribunal did not have the power to make orders 2 and 3, it was entitled to seek an indication from the defendants as to when they could provide a draft licence and an indication from the OC as to when it proposes to hold an EGM to consider the draft licence. Had such indications been given, the Tribunal could have noted them and stood the matter over until after the proposed EGM. This approach would have been consistent with the guiding principle for which s 36 provides.

Whether the Appeal Panel ought to have set aside the Tribunal's costs order (grounds 6 and 7)

Mr Kerr argued that once the Appeal Panel had accepted, as it did in [46] of its reasons, that the form of the order for costs did not correspond with the reasons given by the Tribunal, it was obliged to correct the order under the slip rule. He relied on Gikas v Papanayiotou [1977] 2 NSWLR 944 where the Court's jurisdiction to correct an order where it did not correspond with the reasons given was addressed. Mr Notley did not submit that the Tribunal had intended other than to reserve the question of the costs of the hearing on 1 November 2019.
The Appeal Panel accepted that there was a disparity. However, it did not grant leave or correct the order. Despite the circumstance that the notice of appeal did not contain grounds, the challenge to the Tribunal's costs order was made clear in the OC's submissions that were attached to the notice of appeal.
It was submitted by Mr Notley, on the basis of Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [10] (Basten JA), that the appeal was against the decision of the Appeal Panel and not against the decision of the Tribunal. That must be accepted. Thus, unless error can be shown in the Appeal Panel's refusal of leave, this Court cannot intervene. However, it does not follow that this Court is obliged to remit the matter to the Appeal Panel or to the Tribunal and cannot make the orders which the Appeal Panel could have made. Since an Appeal Panel on appeal can vary or set aside the orders of the tribunal, this Court can, under s 83(3), also make such orders, as long as leave has been granted and a question of law arises.
A disparity between the form of an order and the reasons for the order gives rise to a question of law. I am persuaded by Mr Kerr's submission that the Appeal Panel's discretion to refuse leave miscarried because it was based on the erroneous proposition that reasons could provide a sufficient gloss on an order to alter its terms. For these reasons, leave ought be granted in respect of grounds 6 and 7 to correct the error which the Appeal Panel accepted had been made but did not itself correct.

Whether the Appeal Panel's order for costs ought stand (ground 8)

The OC has been unsuccessful in making out its principal challenge to the Appeal Panel's decision, which was its refusal of leave to appeal against the orders, including the order that the proceedings be adjourned rather than dismissed.
However, the Appeal Panel's finding of special circumstances within the meaning of s 60 was based on two matters which have successfully been impugned. First, the Appeal Panel was able, in its reasons for decision, to summarise concisely Mr Bannerman's main point on the appeal. Thus, it can be taken to have understood the submissions made. The written submissions attached to the notice of appeal were, in my view, sufficiently clear for their purpose. Further, the Appeal Panel was acting on a basis, which I have found to be erroneous, that the OC, through Mr Bannerman, had consented to order 3. Both of these matters appear to have significantly influenced the Appeal Panel's finding of special circumstances and caused its discretion to miscarry. In these circumstances, I am persuaded that the Appeal Panel's order for costs ought be varied under s 83 and that no costs of the proceedings in the Appeal Panel ought be ordered. I am not persuaded that there were special circumstances.

Costs

The parties accepted that the general rule ought apply if one party were wholly successful. However, they otherwise sought that costs be reserved, in order that they could make submissions after having considered these reasons. Each party has had a modicum of success. Accordingly, it is appropriate to reserve the question of costs in order to provide the parties with an opportunity to make submissions.

Orders

For the reasons given above, I make the following orders: 1. Grant leave to the plaintiff to appeal on grounds 1, 2, 3, 6, 7 and 8 under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW). 2. Refuse leave to appeal on grounds 4 and 5. 3. Allow the appeal in part. 4. Set aside the orders made by the Appeal Panel on 28 February 2020 to refuse leave to appeal and dismiss the appeal and, in lieu thereof, make the following orders: 1. Grant leave to the applicant to appeal against orders (1) and (4) made by Senior Member Vrabac on 1 November 2019. 2. Dismiss the appeal against order (1). 3. Allow the appeal against order (4) and set aside order (4) made by Senior Member Vrabac on 1 November 2019 and, in lieu thereof, order that the costs of the hearing on 1 November 2019 in the Tribunal be reserved. 1. Set aside the order for costs made by the Appeal Panel on 19 May 2020. 2. Note that the effect of order (5) is that s 60(1) of the Civil and Administrative Act 2013 (NSW) applies and each party is to pay their own costs of the proceedings before the Appeal Panel. 3. Reserve the costs of the proceedings in this Court. 4. Direct the parties to provide written submissions in support of any application for costs within seven days hereof and any submissions in response within a further seven days with the intention that costs will be determined on the papers.

Amendments 13 August 2020 - Coversheet - Decision (4)(a) and (4)(c): "1 November" substituted for "29 November" [14] and 84(a) and (4)(c): "1 November" substituted for "29 November" 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: 13 August 2020

Civil and Administrative Act 2013(NSW)

Strata Schemes Management Act 1996(NSW)

The Owners - Strata Plan No 70871 v Turek

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