The Owners – Strata Plan No 72250 v Nugent

1. The principal dispute in the appeal concerned the OC and the owners of lots 4, 5 and 6. The issues in dispute concerned whether the lot owners owed approximately $180,000.00 in unpaid strata levies. The registered proprietors of lot 4 are Anthony Nugent and Frances Nugent. The registered proprietor of lots 5 and 6 is Yangura Pty Ltd as trustee of the David Nugent Family Trust. These lots owners are all respondents to the appeal and it is convenient to refer to them as the Nugent parties.
2. The second dispute in the appeal is between the OC and Burredah Pty Ltd. Burredah Pty Ltd (Burredah) was the strata manager of the OC for the period 14 May 2021 to 14 May 2023 pursuant to an order under s 237 of the Strata Schemes Management Act 2015 (NSW) (SSMA). The nature of the complaints against Burredah, in broad terms, concern the discharge of its duties as the strata manager.
3. The Tribunal's decision records that Burredah was deregistered on 24 May 2024. There is no material before the Appeal Panel that would suggest that this is incorrect. Burredah was also not named as a respondent in the Notice of Appeal, likely because it was deregistered. In those circumstances, the Appellant cannot obtain any relief against Burredah.
4. The last dispute is between the OC and Deborah Harry. Ms Harry was a director and employee of Burredah when it was the strata manager of the OC.
5. During the appeal hearing, the Appeal Panel was advised by the OC's representative that Ms Harry had not been served with the Notice of Appeal. Unsurprisingly, Ms Harry did not appear at the appeal. The Appeal Panel cannot make orders which affect Ms Harry's interests in circumstances where Ms Harry was not served with the Notice of Appeal and did not appear at the hearing. To do so would deny Ms Harry procedural fairness.
6. In any event, we note the OC's submissions during the appeal hearing did not pursue relief against Ms Harry.

1. The rest of the lots in the strata scheme, namely, lots 1, 2, 3 and 7-12, are owned by members of the Barrett family or companies associated with them.

1. It is necessary to set out some of the procedural background relevant to the appeal.
2. The OC was not legally represented at the hearing before the Tribunal at first instance or in the appeal.
3. The Notice of Appeal was lodged on 13 February 2025. By reason of rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (CAT Rules) the Notice of Appeal was required to be filed within 28 days of the date the OC was notified of the decision, although the Appeal Panel may extend the time for filing the Notice of Appeal pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act).
4. The Notice of Appeal included the statement that the OC received the decision on 30 January 2025. Attachment C to the Notice of Appeal was a letter dated 17 January 2025 from an accountant retained by the OC, Ms Williams, to the Tribunal's Tamworth registry seeking an extension of time to comply with orders made by the Tribunal at first instance for submissions as to costs. The letter did not disclose any reason for extending the time for filing the Notice of Appeal. Clearly the letter of 17 January demonstrates that the decision was received at an address nominated by the OC before the 30 January 2025.However, it is not clear when the decision was received or whether the Notice of Appeal was lodged out of time. We will assume that the Notice of Appeal was lodged within the required period of 28 days and will not address the question of whether time requires to be extended.
5. The Notice of Appeal set out the following grounds of appeal:

1. an inconsistency between the orders and reasons for the decision.

2. the decision was not fair and equitable.

3. the decision was against the weight of the evidence.

1. The Notice of Appeal contended that the Appeal Panel should make the following orders:

1. Payment of outstanding levies for lots 4, 5 & 6 SP 72250 shown in the Audited Financial Report. FYE 2024 31/5/24.

2. Interest at the statutory rate SSMA.

3. Cost all incurred in relation to Case 22/401188.

4. all records including emails between Wilson legal and Deborah Lee Harry.

1. The Notice of Appeal also sought leave to appeal. The leave appears to have been sought so as to raise 'grounds' other than errors of law. The OC's submissions for leave to appeal were contained in part in attachment A to the Notice of Appeal.
2. The Notice of Appeal also contained a document entitled attachment B setting out additional grounds for granting leave to appeal. That document sought to identify the evidence that the "Tribunal should have given more weight to". Attachment B primarily made submissions as to the evidence which the OC contended should have been accepted in relation to the determination of the Nugent parties' strata levy balances. Attachment B also contained some commentary on earlier proceedings in the Tribunal.
3. The dispute as between the OC and the Nugent parties, which was determined by the Tribunal's first instance decision dated 8 January 2025, concerned whether or not the balances owed by the Nugent parties for strata levies are those for which the OC contends. As will be discussed further below, that issue is in turn affected by orders of the Tribunal made in prior proceedings between the OC and the Nugent parties which resulted in orders as to the strata levy balances in respect of the Nugent parties' lots at particular points in time.
4. Although attachment B referred to the evidence before the Tribunal at first instance, as will be discussed further below, the OC did not furnish the material referred in attachment B to the Appeal Panel.
5. On 27 February 2025 the Nugent parties lodged their Reply to Appeal. The Nugent parties' response to each of the grounds of appeal can be summarised as follows:

1. the Appellant had not identified any inconsistency between the orders and the reasons for decision;

2. the Appellant has not identified any denial of procedural fairness or grounds for finding the Tribunal's decision was not fair and equitable;

3. the Appellant has not identified any evidence that should have been given more weight or any evidence that preponderates so strongly against the conclusions of the Tribunal that a reasonable Tribunal member could not have reached those conclusions and the Appellant has not propounded any grounds that the Appellant suffered substantial injustice.

1. On 12 March 2025 a directions hearing was held in respect of the appeal. Orders were made by Principal Member Robertson as follows:

1. The name of the Appellant is corrected to The Owners - Strata Plan No 72250.

2. Leave is given to the Appellant to be legally represented.

3. Leave is given to the Respondent to be legally represented.

4. The Appellant is to lodge with the Appeal Registry and give to the Respondent by 23 April 2025:

(a) All the evidence given to the Tribunal at first instance on which it is intended to rely;

(b) Any evidence not provided to the Tribunal at first instance in making the decision under appeal, on which it is intended to seek leave to rely;

(c) The Appellant's written submissions in support of the appeal; and

(d) If oral reasons were given and/or what happened at the hearing at first instance is being relied on by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing.

5. The Respondent is to lodge with the Appeal Registry and give to the Appellant by 21 May 2025:

(a) All the evidence provided to the Tribunal at first instance on which it is intended to rely;

(b) If appropriate in response to (b) above, any evidence not provided to the Tribunal at first instance in making the decision under appeal, on which it is intended to seek leave to rely;

(c) The Respondent's written submissions in opposition to the appeal; and

(d) If oral reasons were given and/or what happened at the hearing at first instance is being relied on by the Respondent in the appeal, a typed transcript of the relevant parts of the hearing (except to the extent already provided by the Appellant), together with the sound recording of the entire hearing (unless already provided by the Appellant).

6. The Appellant is to lodge with the Appeal Registry and give to the Respondent any written submissions in reply by 11 June 2025.

7. The Appeal is listed for HEARING on 16 June 2025 at 2:15 PM in Sydney for a half day.

8. The issue of whether the Appeal Panel should:

- extend the time for filing the Notice of Appeal

- give leave to appeal on grounds other than a question of law

- allow fresh evidence or evidence in addition to evidence received by the Tribunal at first instance

is to be determined at the hearing of the appeal.

9. It is noted that Deborah Lee Harry did not appear and was not represented at the hearing today. Mr Wilson, solicitor for the other respondents, has suggested that she is no longer represented by her former solicitor and may not have received notice of the hearing today. If that is the case, Ms Harry may seek the variation of the timetable and/or the hearing date by application on notice to other parties filed by 2 April 2025.

10. NOTES:

(1) If a party does not lodge with the Appeal Registry and give to the other parties documents, sound recordings and submissions as directed above, that party may not be allowed to rely on those documents, sound recordings and submissions at the hearing of the appeal.

(2) If any party wishes to make an application for costs of the appeal, that party is to lodge with the Appeal Registry and give to the other party any submissions on costs at the same time as their submissions in relation to the appeal.

(3) At the hearing the Appeal Panel may proceed, if appropriate, to deal with the appeal by way of a new hearing, under the Civil and Administrative Tribunal Act 2013 (NSW), section 80(3). The parties should be prepared to put before the Appeal Panel any fresh evidence or evidence in addition to evidence received by the Tribunal at first instance and make any submissions in relation to the original application that they want to make.

(4) If a party wishes to rely on a sound recording of a hearing, the party must identify for the Appeal Panel which parts of the sound recording are relied in their written submissions.

(5) Each bundle of documents lodged in accordance with these directions must be paginated. This means that they must be numbered, commencing at 1, on each page of the bundle and, where pages are double sided, on each of the double sided pages. The numbering should not re-commence or end until you have reached the end of the bundle. When complete, it should be possible to identify any page of any document lodged by reference to its individual page number in the bundle.

(6) When filing documents and submissions in relation to this application, you will need a minimum of 5 copies. One copy for your records, one copy is to be given to the other party and 3 hard copies are to be lodged with the Tribunal Appeal Registry.

1. On 5 May 2025 the OC lodged a document setting out its position on the history of the dispute between the parties. The contentions included complaints about the conduct of Burredah when it was the strata manager and the orders made by the Tribunal in each of the proceedings between the parties in the Tribunal.
2. Attached to the OC's 5 May 2025 submissions was a bundle of documents styled "Debtor Statement" for each of the 12 lots in the strata scheme. The "Debtor Statement" is a ledger for each lot recording by way of debits the administration fund and capital fund levies and by way of credits the payments received by the OC. The statements purported to cover the period 1 June 2023 to 31 May 2024. The closing balance on each statement recorded the balances which the OC contended were correct.
3. Apart from the 12 debtor statements, the OC did not lodge with the Appeal Registry or provide to the Appeal Panel any materials consisting of the evidence at first instance on which it intended to rely or any materials on which it intended to seek leave to rely. However, during the appeal hearing, the OC's submissions referred on numerous occasions to the evidence adduced at first instance.
4. The failure to provide the Appeal Panel with the evidence at first instance on which the OC intended to rely for the purposes of the appeal was unsatisfactory for a number of reasons. First, the OC did not comply with the 12 March 2025 orders of the Appeal Panel. Second, the purpose of the 12 March 2025 orders was to facilitate the efficient conduct of appeals, thereby avoiding unnecessary use of finite public resources and also reducing the parties' costs. Third, we, the Appeal Panel, were unable to assess the evidence at first instance to which the OC referred, unless the appeal itself was adjourned.
5. On 11 June 2025 the Nugent parties lodged with the Appeal Panel and served on the OC an affidavit from their solicitor to the effect that the OC had not complied to the 12 March 2025 orders made by Principal Member Roberston.
6. On 12 June 2025 the OC lodged with the Appeal Panel and served on the Nugent parties an email advising that the Appellant was pursuing the appeal, identifying materials and submissions previously lodged in the Appeal Registry on which it relied, and making further submissions about the history of the dispute and the merits of its position.
7. The appeal hearing was listed for an in person hearing on 16 June 2025. When the appeal hearing commenced the Nugent parties appeared by their counsel, Mr Notley. There was no appearance for the OC. The matter was called outside the hearing room but there was no appearance for the OC.
8. The Appeal Panel then contacted Mr Gene Barrett on his mobile telephone. Mr Barrett is, amongst other roles, the chairperson of the strata committee and was the person responsible for the communications with the Appeal Registry in respect of the appeal. His contact details were listed in the Notice of Appeal. Mr Barrett also appeared at the 12 March 2025 directions hearing before Principal Member Roberston.
9. Mr Barrett did not inform the Appeal Panel that he had overlooked or made a mistake concerning the hearing date of the appeal.
10. The Appeal Panel invited Mr Barrett to make oral submissions on behalf of the OC and he proceeded to do so.
11. Mr Barrett's oral submissions repeatedly referred to materials presumably tendered by the OC before the Tribunal at first instance. The Appeal Panel explained to Mr Barrett the difficulty in assessing Mr Barrett's submissions in the absence of the materials tendered at the first instance hearing and to which he referred. This led to an application by the OC for an adjournment.
12. So as to consider the OC's application for an adjournment, the Appeal Panel invited Mr Barrett to explain the reasons for the OC's failure to provide the materials in accordance with the orders of 12 March 2025. Mr Barrett informed the Appeal Panel that the dispute commenced in 2019 and that the documents were not provided because "we don't have a lot of faith in NCAT".
13. The Nugent parties opposed the adjournment. They submitted that the OC had made a conscious decision to disregard the 12 March 2025 order to lodge their materials.
14. The Appeal Panel refused the OC's application for an adjournment and delivered oral reasons during the appeal hearing. In summary, the reasons were that the OC had made a decision to not provide the materials. The OC's lack of faith in the Tribunal was not a satisfactory explanation for not complying with the Appeal Panel's procedural orders so as to justify the adjournment of the appeal. A further reason for refusing the adjournment application was that doing so would delay the finalisation of the appeal and add to costs. Finally, it was not obvious to us, the Appeal Panel, that the documents would affect the outcome of the appeal.

1. We turn to set out the material events and facts in the dispute between the Appellant and the Nugent parties as determined in the various proceedings between those parties in the Tribunal.
2. The Tribunal at first instance succinctly summarised these matters for the period 2017 to the end of 2021 at [22] - [32] as follows:

[22] The dispute commenced with 3 related applications by both parties lodged in 2017 and 2019 and determined by the Tribunal in 2021.

[23] In 2017 the OC commenced 2 separate applications in the Local Court (subsequently transferred to the Tribunal) against the Nugent parties seeking payment of levies, interest and costs.

[24] In 2019 the Nugent parties lodged an application against the OC in the Tribunal which sought orders, inter alia, that the resolutions regarding the disputed levies be invalidated and that a compulsory strata manager be appointed.

[25] On 14 May 2021 the Tribunal issued its decision in relation to all 3 applications.

[26] Relevantly, the Tribunal found at [118] that:

Only the levies raised at the AGMs on 22 October 2018 and 7 November 2019 were validly raised in compliance with the statutory pre-requisites.

[27] The effect of this finding was that the levies raised at AGMs in 2016 and 2017 (payable in 2017 and 2018) were invalidly levied. A re-calculation of the principal and interest payable by the Nugent parties to the OC was therefore necessary, taking into account the part payment by the Nugent parties of the levies.

[28] The Tribunal made, inter alia, the following orders:

1. Order that, on or before 28 May 2021, the parties file and serve either agreed form of proposed orders, or competing forms of proposed orders supported by brief written submissions supporting or opposing respective competing forms of proposed order, that are (without admissions by the parties) said to be in accord with the amount of levies that the ... (Nugent parties) ... have been found liable to pay under the reasons delivered with these orders, with interest thereon in accord with the by-laws and applicable law, such orders to be expressed as principal amounts and interest for each levy, and as a total sum.

2. Appoint, under s 237 of the Strata Schemes Management Act 2015 (NSW), Burredah PL t/as Orana Strata Services (licensee Deborah Lee Harry) as strata manager of the Owners SP 72250 to exercise all the functions of the owners corporation to the exclusion of the owners corporation, all the functions of the strata committee to the exclusion of the strata committee and all the functions of the chairperson, secretary and treasurer to the exclusion of those office bearers, and with all the powers of the owners corporation, for a period of two years commencing on the date of these orders on the terms ... of the strata management agency agreement attached in a draft to a letter dated 18 November 2019 addressed to the Tribunal.

[29] Both parties filed submissions in response to the Tribunal orders.

[30] On 8 September 2021 the Tribunal issued, inter alia, the following further order:

1. Order, pursuant to order 1 made 14 May 2021, that the Nugent parties ... are in credit with respect to their levies as follows as at 28 May 2021: David and Christine Nugent $29,567.84 in respect of lot 4; Yangura PL $20,808.70 in respect of lot 5; Yangura PL $20,808.70 in respect of lot 6.

[31] At paragraphs [43]-[44] of its decision, the Tribunal said:

43. I accept the Nugent parties' submission that the correct reading of order 1 made 14 May 2021, in the context of the substantive reasons, required a global reconciliation of the Nugent parties' levies since the re-set of 5 August 2016, not a selective order to pay the levies found to be validly imposed, with interest thereon, and a later reconciliation of all lot owners' positions as a result of the invalidation of some levies. That seems to me to be clear from the wording of part of order 1 quoted in preceding paragraphs and from the way the parties approached the issues and the evidence in proceedings heard together but which involved only claims against the Nugent parties, not all lot owners. It is one reason that I repeated significant portions of my substantive reasons in the first part of this decision.

44. The Barrett interests may well be entitled to credits against future levies. That was not the subject of these proceedings but will be part of the duty of the compulsory strata manager to assess ...

[32] On 10 November 2021 the Tribunal made orders to the effect that any existing costs orders against the OC and the OC's costs of the proceedings should be paid from the levies on all lots other than the lots of the Nugent parties, and that the OC should adjust its accounts and refund the Nugent parties accordingly.

1. On 14 April 2022 the Nugent parties requested that the strata manager issue certificates pursuant to s 185 of the SSMA in respect of lots 4, 5 and 6. Those certificates were issued in August 2022. The Nugent parties disputed that those certificates gave effect to the Tribunal's orders dated 8 September 2021 and filed an application in the Tribunal against the OC.
2. The application was heard on 13 April 2023 by Senior Member Archibald. At that point in time the strata manager appointed pursuant to s 237 exercised all the functions of the OC. The Tribunal made orders that the OC provide the Nugent parties with particulars pursuant to s 99 of the SSMA. The Tribunal also ordered the OC to issue certificate pursuant to s 184 of the SSMA:

c. the owners of Lot 4 are in credit with respect to their levies in the amount of $29,567.84 in respect of Lot 4;

d. the owner of Lot 5 is in credit with respect to its levies in the amount of $20,808.70 in respect of Lot 5; and

e. the owner of Lot 6 is in credit with respect to its levies in the amount of $20,808.70 in respect of Lot 6.

5. The respondent's costs of the proceedings are to be paid from contributions levied on lot owners other than the owners of Lots 4, 5 and 6.

6. Subject to order 5, no further order as to costs with the intent that the parties bear their own costs of the proceedings.

1. The Appeal Panel was informed, without objection, that the orders made by Senior Member Archibald were made by consent.
2. The OC then issued statements of particulars pursuant to s 99 of the SSMA and s 184 certificates in relation to lots 4, 5 and 6 that as at 25 January 2023 those lots did not have any overdue levies.
3. After the period of compulsory strata management ended the OC commenced the first instance proceedings which are the subject of this appeal. Those proceedings were heard on 24 October 2024.
4. The principal issue in the proceedings before the Tribunal at first instance was the OCs contention that the Nugent parties owed levies for lots 4, 5 and 6 in the amount of $180,898.53. That amount was said to be comprised of the following balances owing:

(1) Lot 4 - $33,893.14;

(2) Lot 5 - $73,953.46;

(3) Lot 6 - $73,052.93.

1. The balances referred to in the preceding paragraph reflect the closing balances in the "Debtor Statements" which the OC lodged with the Appeal Panel on 5 May 2025.
2. The Tribunal did not accept the OC's contentions. One of the principal reasons it rejected the OCs contentions was that the reconciliation of strata levies and payments on which the OC relied did not give effect to the Tribunal's 13 April 2023 orders which prescribed that the balances for lots 4, 5 and 6 were in credit as at 28 May 2021 in the amounts of $29,567.84 (lot 4), $20,808.70 (lot 5) and $20,808.70 (lot 6). At [53]-[54] the Tribunal found:

[53] The reconciliation of the levies on 7 September 2022, and the audit of the Levy Register as at 31 May 2023, both relied on by the OC, are incorrect in that they do not take into account that the Nugent parties were in credit in the amount of $71,185.24 as at 28 May 2021.

[54] Similarly, the 2023/2024 Annual Financial Statement is incorrect to the extent it relies on the (incorrect) opening balances in the audit of 31 May 2023 for lots 4, 5 and 6 for the 2024 financial year ...

1. The Tribunal noted at [55] and [56] that the certificates issued by the OC pursuant to s 184 of the SSMA showed that, as at 25 January 2023, lots 4, 5 and 6 were in credit in the amount of $16,256.82 and that pursuant to s 185 those certificates were conclusive.
2. The Tribunal also dismissed a complaint that Burredah had incurred legal fees in the 2023 proceedings determined by Senior Member Archibald, being a costs order made against the OC by the Tribunal. In those proceedings the Tribunal's orders in respect of costs were as follows:

5. The respondent's costs of the proceedings are to be paid from contributions levied on lot owners other than the owners of Lots 4, 5 and 6.

6. Subject to order 5, no further order as to costs with the intent that the parties bear their own costs of the proceedings.

1. The Tribunal at first instance noted that those orders were made in proceedings between the same parties, namely, the OC and the Nugent parties, and that they were final orders that had not been set aside. The Tribunal dismissed the OC's complaint concerning costs incurred in the 2023 proceedings, concluding at [65] that the costs order made in the 2023 proceedings precluded the OC from "re-litigating the issue of legal costs by reason of issue estopped or res judicata".
2. In any event, relief as against Burredah could not be granted because it was deregistered.
3. The relief sought at first instance as against Ms Harry was as follows:

Clarification of the mystery reversal of a second set of figures that don't add up. The question of the day is which figures are true and correct figures for the purposes of s 99.

1. The Tribunal at first instance observed the deficiency in the form and precision of the order and concluded that the application did not disclose a cause of action against Ms Harry and that the OC's complaint did not enliven the Tribunal's powers under s 232 to settle disputes.

1. We turn to consider the grounds of appeal.
2. Pursuant to s 80(2)(b) of the CAT Act, a party may appeal to the Appeal Panel a final decision of the Tribunal "as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds".
3. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel set out at [13] a non-exclusive list of questions of law:

(1) whether there has been a failure to provide proper reasons;

(2) whether the Tribunal identified the wrong issue or asked the wrong question;

(3) whether a wrong principle of law had been applied;

(4) whether there was a failure to afford procedural fairness;

(5) whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations;

(6) whether the Tribunal took into account an irrelevant consideration;

(7) whether there was no evidence to support a finding of fact;

(8) whether the decision is so unreasonable that no reasonable decision-maker would make it.

1. The first ground of appeal asserts an inconsistency between the orders and the reasons for the decision. If substantiated, this 'ground' may constitute an error of law in that it could demonstrate that the Tribunal's reasons for decision were inadequate, or, possibly other grounds identified in Prendergast.
2. The orders made on 8 January 2025 were entirely consistent with the reasons for decision given by the Tribunal at first instance. The orders made by the Tribunal at first instance dismissing the OCs application are entirely consistent with the reasons for decision. The OC did not demonstrate any inconsistency between the Tribunal's 8 January 20225 orders and the reasons for decision.
3. The OC may have intended to argue in ground 1 that the orders made on 8 January 2025 in the first instance decision were inconsistent with the reasons of Senior Member Burton SC. The OC argued during the appeal that the 8 September 2021 orders of Senior Member Burton SC's required that the OC apply credits of $29,567.84, $20,808.70 and $20,808.70 to the strata levy accounts of lots 4, 5 and 6, as distinct from those amounts representing credit balance for lots 4, 5 and 6 respectively.
4. However, that argument was not open to the OC during the hearing at first instance or before the Appeal Panel due to the 13 April 2023 orders of Senior Member Archibald. The orders of Senior Member Archibald dated 13 April 2023 prescribed that the levies balances for lot 4, 5 and 6 were in credit, as at 28 May 2021, in the amounts of $29,567.84, 20,808.70 and $20,808.70 respectively. The 13 April 2023 orders of Senior Member Archibald were final orders that were binding on the OC and the Nugent parties, with the consequence that unless they were set aside, the OC was precluded from contending that the earlier orders of Senior Member Burton SC required the application of credits of $29,567.84, $20,808.70 and $20,808.70 to the strata levy accounts of lots 4, 5 and 6, as distinct from the prescription that the balances were in credit as at 28 May 2021 in the amounts of $29,567.84, $20,808.70 and $20,808.70 for lots 4, 5 and 6 as at 28 May 2021.
5. Senior Member Archibald's 13 April 2023 orders were binding on the OC and the Nugent parties because they were all parties to the proceedings before Senior Member Burton SC, Senior Member Archibald and the proceedings at first instance. By reason of the 13 April 2023 orders, there was an issue estoppel and a res judicata as between the parties in respect of the strata levy account balances as at 28 May 2021 for lots 4, 5 and 6. Having regard to Senior Member Archibald's orders dated 13 April 2023, the Tribunal at first instance was required to treat the levy account balances for lots 4, 5 and 6 as at 28 May 2021 as in credit in the amounts of $29,567.84, 20,808.70 and $20,808.70 respectively.
6. Consequently, there was no inconsistency between the orders at first instance with the reasons for decision and we reject that ground of appeal. To the extent the OC's argument was that the orders at first instance on 8 January 2025 were inconsistent with reasons for decision in prior proceedings between the parties, we also reject that argument for the reasons explained in the preceding two paragraphs.
7. We turn to consider the second ground of appeal, namely, that the decision was not fair or equitable. Whether a decision under appeal is fair and equitable is a discretionary consideration in determining whether leave to appeal on grounds other than an error of law should be granted.
8. In the Appeal Panel decision in Collins v Urban [2014] NSWCATAP 17 the Appeal Panel dealt with the matters to be considered for the purposes of considering whether leave should be granted - see [82]. At [84], the Appeal Panel stated that ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(1) issues of principle;

(2) questions of public importance or matters of administration or policy, which might have general application; or

(3) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand

(4) a factual error that was unreasonably arrived at and clearly mistaken; or

(5) the Tribunal, having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. Since the OC was not legally represented, we have considered the submissions in attachment A so as to consider whether they raise grounds other than an error of law which might justify leave to appeal or indeed whether the submission discloses any error of law.
2. Attachment A contains a two and half page submission which commences under the following headings:

1, The decision to dismiss our application was not fair and equitable,

2, The decision to dismiss our application was against the weight of the evidence

1. Regrettably, the submissions in attachment A did not distinguish between the two grounds.
2. The first submission in attachment A is that "NCAT improperly exercises official functions in a partial manner and misused information acquired during the matter leading to breaches of public trust". The alleged partiality and misuse of information were not explained and, in any event, there was no evidence before the Appeal Panel to substantiate those submissions.
3. The OC then submitted that the "corruption took place after the reconciled, audited certified accounts of the OC has been established" and that the Nugent parties' solicitors exercised "influence over [the Tribunal and sway over the strata manager" which resulted in a change from "a certified $180,000.00 debit into a $16,256.82 credit" for the Nugent parties' lots. The alleged "corruption" was not identified and again, there was no evidence before the Appeal Panel to substantial that there was any "corruption" or inappropriate "sway" or "influence" over the Tribunal at first instance.
4. Had there been substance to the allegations in the preceding two paragraphs then an error of law would have been demonstrated and leave to appeal would not have been required. However, there was no substance to the allegations.
5. The balance of the OC's submissions in attachment A related to the OC's contention as to the proper characterisation of the orders of Senior Member Burton SC, complaints about the performance of the strata manager appointed to the OC pursuant to s 237 of the SSMA, contentions as to the proper way to determine the strata levy balances for the Nugent lots, complaints the about conduct or results of proceedings in the Tribunal before Senior Member Burton SC and Senior Member Archibald and finally submissions about what were contended to be the true or accurate strata levy balances for the Nugent parties' lots. The complaints appeared directed to the Tribunal's assessment of evidence and appeared directed to the submission that the decision was against the weight of the evidence and the submission that the decision was not fair and equitable.
6. The OC's also made submissions in attachment B to the Notice of Appeal that the Tribunal at first instance should have given more weight to certain evidence. Those submissions dealt with the OC's contention as to how the strata levy balances for the Nugent parties' lots should have been ascertained and the evidence which was before the Tribunal at first instance.
7. Consequently, it is convenient to deal with the central complaint which the OC propounds, namely, the Tribunal at first instance's reasons and conclusions concerning the strata levy balances for the Nugent parties' lots was incorrect.
8. Having regard to the fact that the OC did not comply with the 12 March 2025 order made in these proceedings to lodge with the Appeal Registry "all the evidence given to the Tribunal at first instance on which it is intended to rely" the Appeal Panel is limited to consideration of the "Debtor statements".
9. The OC's central contention concerns the proper interpretation of Senior Member Burton SC's orders dated 8 September 2021. It will be recalled order 1 recorded that:

the Nugent parties ... are in credit with respect to their levies as follows as at 21 May 2021: David and Christine Nugent $29,567.84 in respect of lot 4; Yangura PL $20,808.70 in respect of lot 5; Yangura PL $20,808.70 in respect of lot 6.

1. The OC submitted that Senior Member Burton SC's order required the application of a credit to lots 4, 5 and 6 for each amount specified in the order, as distinct from a determination of the levies balances as at 21 May 2021 for lots 4, 5 and 6.
2. There are a number of difficulties with the OC's submission.
3. The first difficulty is that the order, on its face, records that the Nugent parties "are in credit" in the amounts specified. Consequently, on its face, the order is inconsistent with the OCs submission.
4. The second difficulty is that Senior Member Archibald's orders dated 13 April 2023 also prescribed the strata levy balances for each of the Nugent parties' lots as at 28 May 2021, namely, that the strata levy balances for lots 4, 5 and 6 were in credit, as at 28 May 2021, in the amounts of $29,567.84, 20,808.70 and $20,808.70. As explained above, because the 13 April 2023 orders of Senior Member Archibald were binding on the OC and the Nugent parties, they precluded any further scope for the OC to ventilate whether the orders of Senior Member Burton SC required the application of credits of $29,567.84, $20,808.70 and $20,808.70 to the strata levy accounts of lots 4, 5 and 6, as distinct from the prescription that the balances were in credit as at 28 May 2021 in the amounts of $29,567.84, $20,808.70 and $20,808.70 for lots 4, 5 and 6.
5. Senior Member Archibald's 13 April 2023 orders required the Tribunal at first instance to ascertain or determine the strata levy balances for lots 4, 5 and 6 on the on the basis that, as at 28 May 2021, the balances were in credit in the amounts of $29,567.84, $20,808.70 and $20,808.70 respectively.
6. During the appeal, Mr Barrett's submissions made clear that the OC's materials at first instance did not proceed from the basis that, as at 28 May 2021, the levy account balances for lots 4, 5 and 6 were in credit in the amounts recorded in the Tribunal's 13 April 2023 orders, namely, $29,567.84, 20,808.70 and $20,808.70 respectively. Rather, Mr Barrett's submission was to the effect that, purportedly pursuant to Senior Burton SC's orders and reasons, credits needed to be applied to the levy accounts for lots 4, 5 and 6.
7. The Tribunal at first instance was correct to not accept the opening levy account balance for lots 4, 5 and 6 for which the OC contended unless the opening balances were consistent with the Tribunal's orders of 13 April 2023. The Tribunal's reasons at [53] explained that the OC's reconciliations did not take into account that the Nugent parties were in credit in the amount of $71,185.24 as at 28 May 2021:

[53] The reconciliation of the levies on 7 September 2022, and the audit of the Levy Register as at 31 May 2023, both relied on by the OC, are incorrect in that they do not take into account that the Nugent parties were in credit in the amount of $71,185.24 as at 28 May 2021.

1. At [54] of the first instance decision the Tribunal dealt with 2023/2024 audited financial statement on which the OC relied:

[54] Similarly, the 2023/2024 Annual Financial Statement is incorrect to the extent it relies on the (incorrect) opening balances in the audit of 31 May 2023 for lots 4, 5 and 6 for the 2024 financial year ...

1. We, the Appeal Panel, were not provided with the 2023/2024 audited financial statement. The consequence is that the OC did not demonstrate to the Appeal Panel that the Tribunal's conclusion at [54] was incorrect.
2. We also observe that during the appeal hearing, Mr Barrett's submissions in respect of the OC's 2023/2024 audited financial statements proceeded on the basis that a credit had to be applied to the strata balances for the Nugent parties' lots to purportedly to give effect to Senior Member Burton SC's orders dated 8 September 2021. We consequently would not expect that production of the 2023/2024 audited financial statements would have assisted the OC because the application of a credit to the levy balances would not be consistent with the orders of Senior Member Archibald.
3. Consequently, we do not accept that the decision of the Tribunal at first instance was against the weight of the evidence and reject that ground. We have considered the substance of the OC's contentions in relation to the Tribunal's reasons for decision in relation to the strata levy balances of the Nugent parties' lots. We have rejected those complaints. Consequently, to the extent the OC seeks leave to appeal, we refuse leave.
4. For the reasons explained above, we also do not find any error of law in the first instance decision insofar as the appeal concerned the dispute as to the Nugent parties' strata levy balances.
5. As explained above, relief cannot be granted as against Burredah because it has been de-registered.
6. Relief cannot be granted against Ms Harry in circumstances where she was not served with the Notice of Appeal and did not appear at the hearing. Further, we agree with the Tribunal at first instance that the orders sought against Ms Harry were deficient in form.

1. We make one final observation which we, the Appeal Panel, raised during the appeal hearing. Ordinarily, the obligation of lot owners to pay strata levy contributions is determined in accordance with the lot's proportionate unit entitlement. Consequently, over a defined period of time, the total strata levy obligations and contributions from each lot should ordinarily accord to the proportionate unit entitlement for the lot. Thus, if a strata scheme comprises two lots with lot A having a proportionate unit entitlement of 30% and lot B having a proportionate unit entitlement of 70% then, ordinarily, the total levy contributions paid would be expected to reflect that 30% of the levies paid to the owners corporation were from lot A and 70% were from lot B. There may be range of circumstances which result in the total contributions from lot A and lot B being other than their proportionate unit entitlement. Those circumstances include interest charges on overdue levies or orders made by a Court pursuant to s 90 of the SSMA that levies to meet a costs order made against an owners corporation not be levied on a particular lot or lots.
2. One of the disputes between the OC and the Nugent parties was the validity of the levies purportedly raised at the annual general meetings on 22 October 2018 and 7 November 2019. Senior Member Burton SC held that those levies were invalidly raised resulting in the need for a recalculation of the principal and interest payable by the Nugent parties by way of levies. In principle, a similar recalculation would be expected for all lot owners who paid or partly paid those invalidly raised levies.

(1) Leave to appeal refused.

(2) Appeal dismissed.

(3) If the Respondents seeks costs of the appeal, they must file and serve submissions not exceeding 3 pages and evidence in support within 14 days of the publication of these reasons.

(4) The Appellant has 14 days thereafter to file and serve submissions on costs not exceeding 3 pages and any evidence in support in reply.

(5) The parties' submissions on costs should include a submission as to whether we may dispense with a further hearing and determine costs on the papers.

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.