The Owners - Strata Plan No. 74442 v Harrison - [2023] NSWCATAP 144 - NSWCATAP 2022 case summary

NCAT Appeal Panel|2022-09-01

Carolyn Arnett (Third Respondent Vasiliki Tsiavos (Fourth respondent) Raveen Prakesh (Fifth Respondent) Saliya Gunawardena(Sixth Respondent) Petar Trajkovsji (Seventh Respondent) Sandor Jakucs (Eighth Respondent) Representation: Bannermans Lawyers (Appellant) JS Mueller & Co Lawyers (First, Second and Third Respondents) No Appearance (Fourth, Fifth and Sixth Respondents) Mr Jones (Lay Advocate) (Seventh and Eighth Respondents) File Number(s): 2022/00137142 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and commercial Citation: N/A Date of Decision: 25 March 2022 Before: G Ellis SC, Senior Member File Number(s): SC 20/33622

Summary

The decision appealed against made on 25 March 2022 determined three applications made in the Consumer and Commercial Division of the Tribunal pursuant to jurisdiction conferred on the Tribunal by the Strata Schemes Management Act 2015 (NSW)('SSMA'). This appeal deals with related issues in Appeal 22/114622. We will release our decision in that appeal concurrently with this decision. To an extent, it will be useful that they be read together.
The appellant appeals against the decision made in SC 20/33622. There were 11 orders made in those proceedings, the most important being the appointment of Peter Clisdell Pty Ltd trading as Clisdells Strata Management ('Clisdells') as strata managing agent for a period of two years to exercise all the functions of the chairperson, secretary, treasurer and strata committee of the appellant on the terms and conditions set out in the management agreement provided as an attachment to its letter of consent dated 8 September 2020. The appointments were made under ss 237(1)(a) and (2)(a) of the SSMA.

The statutory basis for the appeal

Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act').
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are constrained by cl 12(1) of Sch 4 of the NCAT Act.
In such cases, the Appeal Panel must be first be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: 'there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.'
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: '(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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 to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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.'

The appellant's grounds of appeal

Grounds 1- 3 assert that there were errors of law based on three separate breaches of the Tribunal's obligation to afford the appellant procedural fairness. It is asserted that this obligation was breached because of: 1. Apprehended bias; 2. Breach of the hearing rule; and 3. Failure to comply with the Tribunal's Member Code of Conduct.
For reasons it is unnecessary to descend into here, an issue arises as to whether, in the context of appeals to this Appeal Panel, those grounds can truly amount to a question of law. Certainly, they were not drafted as such in a conventional way by the appellant. However, that issue was not addressed by the parties and, in any event, even if those grounds do not appropriately frame a question of law then they are grounds which are of public importance and which, if established, indicate the appellant may have suffered a substantial miscarriage of justice on the basis that the decision of the Tribunal was not fair and equitable. That is because of the primacy of the Tribunal keeping itself within its jurisdiction and this Appeal Panel's role in ensuring it does so. As a result, leave to appeal on those grounds should be granted to the extent it is required. Since leave has been sought, we need not develop that issue further.
Ground 4 asserts that the Tribunal made an error of fact or mixed fact and law in preferring the appointment of Clisdells over SMS, for reasons unrelated to the absence of Clisdells' terms and conditions from evidence.
Ground 5 relates to the Tribunal appointing Clisdells in the absence of its terms and conditions being in evidence.
The appellant seeks leave to appeal on the basis that it may have suffered a substantial miscarriage of justice because: 1. the decision was not fair and equitable; and 2. significant new evidence is now available that was not reasonably available to it at the time of the hearing;
We are left to infer that the appellant says those issues also lead to the conclusion that the decision was wrong on a basis rising above the merely arguable and that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand.

Ground 1 - Failure to afford procedural fairness

Ground 1 states that: 'The Senior Member erred in law by not affording the owners corporation procedural fairness with respect to the apprehended bias that he held towards (sic) the owners corporation.'
The first issue relied upon by the appellant as raising a reasonable apprehension of bias is the fact that the Senior Member heard an interim application (SC 22/09545) that was filed on 4 March 2022, on the first day of the substantive hearing on 9 March 2022.
The Senior Member referred to this interim application at [9] of his Reasons stating that it was finalised on 11 March 2022. He also discussed the interim application in detail at [255] - [268] of his Reasons, including addressing the appellant's procedural fairness submissions.
The orders made by the Senior Member on 11 March 2022 were: 'Pursuant to section 231 of the Strata Schemes Management Act 2015, until the earlier of the finalisation of the substantive application (SC 22/09545) and 10 June 2022, the respondent, its officers and agents, are restrained from providing or confirming a commencement date to Pinnacle Building Group Pty Ltd under the contract dated 28 February 2022. The issue of costs is reserved.'
Short reasons were provided by the Tribunal Member as follows: 'Having considered the evidence provided in relation to this application, and having regard to the submissions of the parties, the Tribunal is satisfied that the issues raised in the substantive application (SC 22/09545) overlap the issues in the related proceedings (SC 20/33622 and SC 20/47222), notably the ambit of the scope of works, and that those three applications are to be finalised on an urgent basis. Noting that (1) the respondent's contract with Pinnacle Building Group Pty Ltd is dated 28 February 2022 which is less than two weeks ago, (2) that contract indicates that a commencement date is "tbc", ie to be confirmed, (3) the evidence does not appear to indicate that any commencement date has been provided, (4) the submissions did not suggest that any commencement date has been provided, the Tribunal is satisfied that the balance or convenience favours an order, on an interim basis, to restrain the respondent from providing a commencement date and that there are urgent considerations which warrant such an order being made.'
The issues raised by the appellant in connection with the application for interim orders are: 1. The appellant was not aware that the interim application would be heard and was not prepared to address or make submissions with regard to the interim application; 2. the solicitor for the appellant objected to the hearing of the interim application at the hearing on 9 March 2022, stating that he had only been engaged a short time ago, that there were a number of applications already on foot and that he would not 'be prepared' to provide a fulsome response to those applications on such short notice; and 3. the Senior member did not give any weight to these objections and made interim orders at 8:17 am on 11 March 2022.
The appellant's stated ground for negating the interim orders set out above is apprehended bias. The High Court of Australia has given guidance on how to determine whether apprehended bias has been established. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at [6] and [7] the Court said: 'Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that a tribunal be independent and impartial. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.'
In The Owners - Strata Plan No 4159 v Wolff [2021] NSWCATAP 135 at [34] an Appeal Panel made the following comments in connection with apprehended bias and the passage extracted above: 'Application of the test "requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits". It also requires "an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits". The mere assertion of interest of a judge "will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can reasonableness of the asserted apprehension of bias be assessed": Ebner at [8]
In Polsen v Harrison [2021] NSWCA 23 ('Polson') the Court of Appeal set out the principles that are relevant to an analysis of an assertion of apprehended bias and the nature and role of the fair-minded lay observer at [46]. Some of the more pertinent propositions referred to by the Court are set out in the following passage: "[46] To the passages from the authorities extracted and emphasised by the trial judge…may be added the following propositions: (i) the application of the apprehended bias rule depends on the circumstances of each case; (ii) the fair-minded lay observer is an hypothetical figure, founded in the need for public confidence in the judiciary; (iii) there is an unavoidable level of imprecision in the standard of what a fair-minded lay observer "might" apprehend, such that a fanciful or speculative possibility must be clearly distinguished from the requisite "firmly-established" apprehension of bias; (iv) a finding of apprehended bias is not to be reached lightly; (vii) the fair-minded lay observer is presumed to approach the matter on the basis that ordinarily the judge will act so as to ensure both the appearance and the substance of impartiality … (xi) the fair-minded lay observer is not presumed to reject the possibility of pre-judgment of a matter, otherwise an apprehension of bias would never arise in the case of a professional judge; … (xxi) the fair-minded lay observer would not reasonably apprehend bias on the part of a judge from a short and emotional exchange taken out of context and weighed in isolation; (xxii) the fair-minded lay observer will have regard to the cumulative effect of comments made by a judge and not to particular individual statements from their context; and (xxiii) subsequent statements made by a judge, following the comments or conduct said to give rise to a reasonable apprehension of bias, may indicate that an earlier expressed statement or impression was not final or that the judge had not committed to a particular point of view"
The reasonableness of any apprehension of the fair-minded lay observer is also considered "in the context of ordinary judicial practice": Charisteas v Charisteas [2021] HCA 29 at [12] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ); 95 ALJR 824 quoting Ebner at [13]; see also Kirby J's comments in Ebner at [53].
The appellant's submissions in support of apprehended bias referring to the Tribunal Member's conduct in dealing with the interim application do not in our view provide a basis for finding that a fair-minded lay observer might reasonably apprehend that the Senior Member might not bring an impartial mind to the resolution of the issues required to be dealt with in the interim application, SC 22/09545. Nor can the fact that the Senior Member did not accept the appellant's solicitor's submissions and proceeded to deal with the interim application in an expeditious manner, as he was required to do, be a basis for finding that there was a denial of procedural fairness. The appellant's representative was required to be ready to proceed and to be familiar with all aspects of the litigation. There is no suggestion that the appellant was denied the opportunity to make submissions or to be heard on the interim application.
To put this issue in context, we have had regard to Appendix 3 of the Senior Member's decision which was a summary of his decision for the benefit of lot owners. Relevantly the Senior Member stated: 'After obtaining advice from a building consultant, which suggested a partial rectification of waterproofing issues, confined to units 21 and 23, would cost in the vicinity of $40,000 and a complete rectification of those waterproofing issues would cost $375,600, on 27 February 2020 a decision was made to accept the $375,000 quotation for the complete rectification and levies were raised for that purpose. However, on 20 August 2020, that decision was reversed, and a quotation was accepted for the partial rectification, with additional work on units 21 and 23, at a cost of $189,000. The Tribunal subsequently made an order to restrain that work from being carried out pending a hearing. That restraining order having expired, on 27 February 2022, about two weeks prior to the hearing, a new quotation for $313,700 was accepted for the same scope of work, ie partial rectification with additional work confined to units 21 and 23, and a contract was signed the following day. In short, the work now being carried out, compared to the original decision, decreases the work on the cause and increases the work on the effects in units 21 and 23. On 11 March 2022 the Tribunal made an order that was intended to restrain the commencement of that work. However, that work has since commenced and that has limited the orders which the Tribunal can make. The Tribunal has directed Clisdells to endeavour to vary the contract in a way that will the benefit all lot owners.'
The explanation of the relevant circumstances extracted above establishes the need for the expedition that was associated with the application for interim orders and the appellant has not provided a transcript of the hearing to give any context to its complaint. Further, whilst the fact that a party retains legal representation shortly prior to a hearing may be relevant to consideration of an adjournment, it cannot be determinative. Nothing was put before us, or apparently before the Senior Member at first instance, to explain the timing of the appellant retaining solicitors, such that any prejudice in not allowing more time for the solicitors to familiarise themselves with the matter could be said to outweigh that caused to the other parties in delaying resolution of the matter. Mere dissatisfaction with the outcome of a decision is not grounds for a reasonable apprehension of bias.
Further, the orders sought by the appellant under the heading 'Orders that the NCAT Appeal Panel Should Make' at Attachment 'A' to its Notice of Appeal do not seek relief in connection with the interim orders made by the Tribunal Member on 11 March 2022. The submissions made by the appellant do not identify a connection with the application for interim orders and the final orders which the appellant seeks to have set aside, or the how the alleged apprehended bias in connection with the interim orders affected the hearing as it related to the final orders which the appellant submits should be set aside.
We reject the appellant's assertion that the making of interim orders denied the appellant procedural fairness because a fair-minded lay observer might reasonably apprehend that the Senior Member might not have brought an impartial mind to the making of those orders, or the final decision.
The second issue raised by the appellant as establishing apprehended bias relates to [269] and [270] of the Reasons for Decision which state, in relation to the issues we have referred to at [35] above: '269. The Tribunal notes that, during their oral submissions on 10 March 2022, neither Mr Jones nor Mr Bannerman indicated to the Tribunal that a commencement date had been either provided or confirmed. Nor did either of them indicated that any instructions had been given for the works to commence, Indeed, the tenor of the submissions of both Mr Bannerman and Mr Jones was that the work of Pinnacle was being held up by the members of Group 1. That is reflected in the fact that both Mr Bannerman and Mr Jones seeking an undertaking as to damages which would not have been sought if the work had already commenced or if instructions for its commencement had been given. 270. Plainly, there will be a need for contempt proceedings to be considered but that aspect does not form part of the Tribunal's work in these proceedings.'
This aspect of the decision was concerned with the substantive application by the respondents who filed the interim application referred to above. Their application was described at Reasons [254] as seeking to restrain the appellant from entering into a contract with Pinnacle Building Group Pty Ltd. At Reasons [264] - [268] the Tribunal Member discussed the submissions made and the evidence received in connection with this application.
At [265] the Senior Member referred to an unsigned, undated statement from one of the respondents, submitted to the Tribunal on 18 March 2022 when oral submissions were made, which stated that work had started, in breach of the interim orders. The Senior Member then analysed the evidence annexed to that statement relating to the commencement of building work.
The Senior Member stated at [268] in connection with the commencement of work: 'It was not for the Tribunal to re-open the hearing to investigate those matters. The fact that a contract was signed has already been taken into consideration by the Tribunal. An order has been made for the strata managing agent to explore with Pinnacle the aim of varying the contract with the aim of (1) enabling a total repair and not a partial repair of the waterproofing, (2) avoiding a situation where work done by Pinnacle under the existing contract has to subsequently be removed and re-done, and (3) ensuring that the interests of all lot owners are considered.'
At [14] of the Grounds of Appeal the appellant states: 'With respect to the above,' [269] of the Tribunal decision 'the solicitor for the owners corporation had not received instructions that a commencement date had been confirmed by the owners corporation until after the hearing had finished on 10 March 2022. There is clear apprehended bias on the part of the Senior Member, who gave no consideration to the above circumstances, yet in his decision made out of the following:'
Reference is then made to [270] of the Reasons.
The appellant's concern about the Member's reference to "a need for contempt proceedings to be considered" is to be understood by reference to the Senior Member's reasons at [254] - [268], where he states that the interim application was heard on the afternoon of 10 March 2022 when submissions were made by a number of parties including the appellant's solicitor and the representative of the appellants in AP 22/114622. When submissions were made on 18 March 2022 in connection with the substantive application SC 22/09543, the Senior Member at [267] referred to an annexure to the unsigned, undated statement from one of the respondents which was a photograph: showing a notice bearing a date of 10 March 2022 which suggested that "urgent building works on these premises are to commence on or about 11 March 2022"
This photograph gave rise to an inference that on 10 March it was planned to commence work the following day, a fact which was not disclosed to the Senior Member when submissions were made on 10 March.
We are of the view that it was open to the Senior Member to make findings about these facts at [254] - [268] of his reasons. We also find that it was open to him to make the observations and findings at [269] of his Reasons.
So far as his observation that there would be a need for contempt proceedings to be considered, we find that such an observation was open to him given that his 11 March orders had not been complied with and there was evidence which suggested that the decision to commence work had been made on 10 March 2022, but that fact had not been conveyed to the appellant's solicitor or the representative of the appellants in AP 22/114622.
As stated in the authorities cited, in particular Ebner, there is a two step process involved in apprehended bias. First, there must be the identification of what it is said that might lead the Tribunal Member to decide a case other than on its legal and factual merits. The second step is the articulation of the logical connection between the matter and the feared deviation from deciding the case on its merits. The first matter is the Senior Member's reference to the need for contempt proceedings to be considered. The logical connection between the Senior Member's statement and the feared deviation from deciding the case on the merits have been explained as an understanding that the Senior Member's comments were directed to the representatives of the appellant and the appellants in AP 22/114622, and generally because of the seriousness of the statement by the Senior Member that there would be a need for contempt proceedings to be considered. We do not agree. At its highest, the Senior Member's comments at [270] of the Reasons may be said to cause a deviation from deciding the case on its merits as the appellants were identified as being persons the subject of potential contempt proceedings. However, as we have pointed out, the Senior Member's statement was the subject of a rational conclusion based on findings of fact which had been explained in some detail.
As stated in Polson: 'There is an unavoidable level of imprecision in the standard of what a fair-minded lay observer "might" apprehend, such that a fanciful or speculative possibility must be clearly distinguished from the requisite "firmly-established" apprehension of bias'
For the reasons that we have provided in the preceding paragraphs, we find that it was open on the facts as found by the Senior Member to have made the statements that he did in [269] and [270] of his Reasons. Based on the Senior Member's reasoned basis for stating that there was a need for contempt proceedings to be considered, we find on an objective basis that the appellant's identification of that statement as being the cause of a reasonably apprehended deviation from deciding the case on its merits tends towards being speculative, rather than something that could be described as firmly established. It follows in in our view that there can be no basis for finding that a fair-minded lay observer might reasonably apprehend that the Senior Member might not bring an impartial mind to the resolution of the issues that were before him for determination.
The third basis for asserting apprehended bias is that on 25 March 2022, when his Decision was published, the Senior Member made orders 3 and 4 which required compliance in the case of order 3, by 5pm that day and in the case of order 4, by 5pm on Monday 28 March 2022.
The appellant submits that it was unreasonable to make the orders with such a short timeframe for compliance, and that framing the orders in this way is evidence of bias. It is said that this is arguably an attempt to frustrate any appeal being lodged with respect to the compulsory appointment orders made.
We reject this submission. In our view the fact that the Senior Member made orders with short time frames for compliance cannot be a basis for finding that a fair-minded lay observer might have reasonably apprehended that the Senior member might not have brought an impartial mind to the resolution of the matters before him for determination. At the highest, it may be submitted that such expedition in the time for compliance was not warranted or possible, in which case an application for an extension of the time provided for compliance would have been appropriate. The submission that the time for compliance as ordered was an attempt to frustrate any appeal being lodged with respect to the compulsory management orders is in our view misconceived. Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 states that an internal appeal of this nature must be lodged within 28 days from the day on which the appellant was notified of the decision. The time for complying with an order made by the Tribunal at first instance has nothing to do with the time limits for an appeal being lodged. If it was feared by the appellant that filing an appeal would have no effect on orders 3 and 4 because of the short time period for compliance, the appellant had the right to apply for a stay or another order affecting those made by the Senior Member. Finally, we note that the Tribunal recorded that it had received submissions that there was urgency in the resolution of the issues (Reasons [15]) and there is no assertion in the appeal that was incorrect.

Ground 2 Hearing Rule

The appellant raises two matters as instances in which the hearing rule was breached by the Senior Member.

Refusal to allow submissions

First, it is said that on 18 March 2022 when the Senior Member was hearing final submissions, the appellant's solicitor was not permitted to make certain submissions.
At the first instance hearing the present appellant was a respondent and three of the present respondents were the applicants.
The appellant's Grounds of Appeal, at [20], indicate that at the hearing its solicitor stated that he reserved his right to make submissions in reply to the submissions in reply made by the solicitor for the applicants. The appellant submits that after the solicitor for the applicants had made his submission in reply, he terminated his AVL link and the Senior Member did not allow the solicitor for the present appellant (a respondent at first instance) to make a reply, to submissions in reply.
The appellant's submissions further state at [42] and [43]: 'It was clear that the Senior Member had closed his mind to further submissions or persuasion and so the owners corporation was not afforded procedural fairness in making a fulsome response to the claims brought against it. This is abundantly clear from how quickly the Senior Member's decision was drafted and issued to the parties (5 business days later), especially considering that the Decision is 97 pages long.'
In Elkhouri v Khuu [2021] NSWCATAP 86 an Appeal Panel at [51] described the hearing rule as the litigant's right to be informed of the case against them and to be given the opportunity to be heard.
In Makowska v St George Community Housing Ltd [2021] NSWCATAP 198 an Appeal Panel considered the hearing rule. At [53] - [54] the basis of the hearing rule in the Tribunal was described in the following terms: 'The Civil and Administrative Tribunal Act 2013 provides, in s 38(4) and (5): (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. These provisions make it clear that the Tribunal is obliged to accord procedural fairness to the parties before it.'
We reject the appellant's submission that not being afforded a right to reply to the applicant's reply submissions resulted in the appellant being denied procedural fairness. As a matter of orthodox procedure, a respondent does not have the right to reply to an applicant's submissions in reply. When the time for final submissions had arrived, the present appellant had the opportunity to hear everything the applicant at first instance had said in connection with the proceedings and then to respond to what had been said and at the same time to make all necessary submissions regarding its case, its evidence and the law in support of its position. We specifically reject the submission that the appellant was not afforded procedural fairness 'in making a fulsome response' to the claims brought against it. The appellant made its submissions in the proceedings as referred to in the Reasons for Decision. We find that the appellant, being legally represented, understood the nature of the proceedings and had a reasonable opportunity to be heard and otherwise have its submissions considered. It did not have the right to make repeated submissions and a refusal to allow it to do so does not raise a reasonable apprehension of bias.
We reject the suggestion that this conduct indicates the Senior Member had closed his mind to persuasion. He did no more than limit the giving of submissions to an orthodox practice. We also reject the proposition a denial of procedural fairness is evidenced by how quickly the Reasons for Decision were made available. The speed in which the Decision became available arose, no doubt, because of the Senior Member's diligence, hard work and efficiency. The fact that the decision was issued with expedition cannot in our view, in itself, be a basis for concluding that the appellant was denied a fair hearing. We reiterate that the Tribunal had been told the resolution of the issues in dispute was urgent.

Unnecessarily discourteous

Secondly, in support of the ground that the appellant was denied procedural fairness is the assertion that at various times during the hearing the Senior Member was unnecessarily discourteous. References are given to specific incidents in the appellant's submissions. The following incidents are relied upon.
On 18 March 2022, at approximately 00:00:50 of the audio recording, the following exchange: "Mr Bannerman: [00:00:50] Senior Member do you mind if I attend via phone only Senior Member: What phone number? Mr Bannerman: I'll just call in, I'll just call- [cross-talk] Senior Member No you won't call in, I will call you. I ask for a second time, what number."
On 18 March 2022, at approximately 00:35:37 of the audio recording, the following exchange: Mr Van Ede Mr Bannerman's submission is at paragraph 58, where he seems to suggest that unauthorized works which are carried out by members of the strata committee, in this case obviously Mr Trajovski (sic) for the benefit of the owners' corporation [Cross-talk] Mr Bannerman: Sorry Mr Van Ede did you say paragraph 38? Senior Member: Oh Mr Bannerman, Mr Bannerman please keep quiet. Mr Van Ede go ahead Mr Bannerman: But that's not the paragraph- [Cross-talk] Senior Member: Mr Bannerman, Mr Bannerman if you interrupt again, I will use the power on this machine to mute you. Mr Van Ede, go ahead without interruption."
The appellant also submits that during the hearing on 10 March 2022, the solicitor for the present respondents could be seen laughing on the visual link during submissions. This was objected to by Mr Jones, and the solicitor for the appellant but the Senior Member did not address the concerns of the appellant. The sections of the transcript relied upon are: "Mr Jones: [05:56:271 I see you laughing at me Mr van Ede, you can write out a cheque for 180,000 [unintelligible]- Senior Member: Mr - Mr Jones, just make your submissions will you, please Mr Jones: I've got someone laughing at me on the screen Senior Member Well ignore it Mr Bannerman: I think that you should instruct Mr Van Ede from stopping doing that, he was doing it when I was speaking as well. It is completely inappropriate - Senior Member Well - Mr Bannerman: - It's childish Senior Member: Well, it's not having any impact on me. Mr Jones kindly finish your submissions'
The appellant also relies on the following exchange on 10 March: "Mr Bannerman: 106:00:301 The only order I'm seeing in the materials I've got is one saying you cannot enter in the contract. I don't believe that the Tribunal has any jurisdiction to make an order after someone's entered into a contract to say don't perform the contract. You know, you cannot order a person to be liable to [unintelligible] of the contract. So, this order that you have said you are going to extend I don't see that - Senior Member: Correction, Mr Bannerman, two points. Firstly, you weren't invited to add submissions, so it is rude of you to do so, without seeking leave. Secondly, I did not indicate what I would do, I merely read out the wording of a previous order. So, I command a retraction for you, from you Mr Bannerman: I wasn't, I wasn't criticizing you Senior Member - [Cross Talk] Senior Member: I am not - Mr Bannerman Mr Bannerman: [Unintelligible] Senior Member: Mr Bannerman. Mr Bannerman, will you stop talking. You have one mouth and two ears, so you listen twice as much as you speak."
The authorities that discuss intervention by a trial judge or tribunal member refer to several ways that a trial judge might inappropriately or excessively intervene. Often the matters complained of will relate to a trial judge cross examining witnesses or making comments about their evidence. Those situations are not raised in this appeal. What is raised is primarily the way the Senior Member communicated with the solicitor for the appellant.
In R v The Commonwealth Conciliation and Arbitration Commission and Ors; ex parte the Angliss Group (1969) 122 CLR 546 the High Court considered an application for a writ of prohibition against the Commission on the grounds of apprehended bias and a breach of the principles of natural justice. The Court said, at pages 553-554: '[The] requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.'
In The Owners-Strata Plan No 79633 v Graorovska [2022] NSWCATAP 152 an Appeal Panel considered excessive intervention in Tribunal Proceedings by a Senior Member. The Appeal Panel referred to the NSW Court of Appeal's consideration of excessive, unnecessary and unreasonable judicial intervention during the course of the hearing in Manly Fast Ferry Pty Ltd v Wehbe [2021] NSWCA 67 ('Wehbe') at [23]-[40]; [116]-[121]; [169]-[185] and [214]. The Appeal Panel summarised the relevant principles as follows: 'The test to be applied is whether judicial questioning or pejorative comments have created a real danger that the hearing was unfair (Wehbe at [38]). That involves an objective assessment of what occurred during the whole of the hearing (Wehbe at [214]). Excessive judicial intervention causing a denial of procedural fairness is frequently, but not always, coupled with a ground that asserts apprehended bias. However, the legal concepts are different and involve different tests (Wehbe at [165]-[166]). Judicial officers are entitled to intervene during the course of a hearing to restrain excessive questioning (and submissions) so that parties and witnesses are focussed on the real issues in dispute; clarify answers or ambiguities; raise tentative views about the evidence or submissions; deal with objections; and test submissions. Judicial officers are not expected to be mute and 'sphinx like'. The questioning and testing of submissions may be legitimately vigorous and robust (Gambaro at [25]-[26]). Far from signifying unfairness, judicial questioning gives witnesses, legal practitioners and self-represented parties an opportunity to answer questions that have arisen (Wehbe at [183]). A judicial officer is entitled to make comments and ask questions to understand; test; and clarify a party's case (Gambaro at [29]). However, judicial intervention cannot reach the "point of unfairness". Whether the point of unfairness has been reached is considered in the context of the whole hearing in light of the number, length, terms, and circumstances of the intervention (Wehbe at [171]; citing Galea v Galea (1990) 19 NSWLR 263 at 281). The point of unfairness may be reached if the judicial officer unreasonably and excessively constrains cross examination of a witness; appears obviously hostile to a witness, party or legal practitioner; makes sarcastic or belittling remarks about a witness, party or practitioner; or questions a witness in such a manner it objectively appears the judicial officer is acting as an advocate for a party (Wehbe at [182]). Excessive questioning of witnesses or interruptions by a judicial officer may demonstrate that they have unfairly impeded their capacity to objectively evaluate the evidence (Wehbe at [216]; Gambaro at [29]-[30]).'
After referring to relevant authorities the Appeal Panel stated at [104]: 'Ultimately, it depends upon all the objective circumstances during the course of the hearing as a whole as to whether there was excessive judicial intervention. Isolated instances of excessive judicial intervention or unjustified critical comments about witnesses or representatives will not usually be sufficient to 'cross the line' into the point of unfairness.'
At [110] the Appeal Panel stated: 'As discussed previously, the provisions of ss 36 and 38 of the NCAT Act make clear that the task of a Member is to conduct a hearing in a procedurally fair and efficient manner that ensures the parties and their representatives focus upon the just, quick and cheap resolution of the real issues in dispute. That may involve, from time to time, comments that are critical of a party; a witness; or a legal representative. A Member may also make remarks expressing frustration. The mere fact some critical comments are made does not demonstrate that judicial intervention has reached "the point of unfairness".'
In Galea v Galea (1990) 19 NSWLR 263, a case in which both procedural unfairness and apprehended bias were expressly pleaded, Kirby A-CJ, with whom Meagher JA agreed, (in the context of the procedural unfairness ground) at 281 extracted from the authorities six "guidelines" of which we consider the first three are the most relevant and which are set out below: 'The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial... Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and 'into the perils of self-persuasion'
Finally, in In VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872, Kenny J in the Federal Court said at [81]: "[81] Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. As Kirby J said in Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225, at 230: "While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator." As noted earlier, if a Member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but this conduct will not of itself constitute disqualifying bias. Mere insensitivity to an applicant, whether about his personal situation or otherwise, will also not amount to such error."
The extracts from the recording of the hearing which the appellant relies upon in our view go to the manner in which the Senior Member was dealing with the way in which the hearing was progressing and keeping an orderly state of affairs in place as regards the interactions of the parties' representatives. In some instances, the Senior Member's comments may be characterised as impatient or irritated. The authorities state that a mere lack of nicety will not infringe the requirements of natural justice. In the course of a two-day hearing with the third day set aside for submissions, the appellant has only been able to refer to a handful of incidents that it sees as worthy of raising. There is no submission of excessive intervention. Nor would we characterise the extracts that the appellant relies on as being indicative of excessive intervention by the Senior Member.
The appellant has not satisfied us that the above passages demonstrate that the hearing as a whole was unfair, that the appellant was denied a fair hearing, that the Senior Member had closed his mind to persuasion or that it could reasonably have been thought that was a possibility. We regard the passages referred to as indicative of the Senior Member endeavouring to manage the hearing so that it might progress in an efficient manner and on occasion exhibiting impatience or irritation. Relevantly, he did so in respect of the conduct of the appellant's solicitor in the hearing and not in a way indicative of the Senior Member having a view on the substance of any of the issues he was to decide.
It is also relevant, in our view, that the appellant failed to comply with a direction in the appeal that, if it relied upon what occurred in the hearing, it was to provide the sound recording with any partial transcript. Its failure to provide the sound recording prevents any examination of what occurred in the period leading up to the Senior Member's expressions of irritation or frustration.
In relation to the issue of Mr Van Ede allegedly laughing during the other parties' submissions, we dealt with that in the related appeal in the following terms, which are apposite here: On one view, it may prima facie seem to have been desirable for the Senior Member to have admonished Mr Van Ede. However, the context of the hearing the Senior Member was conducting needs to be considered. In that regard, the Senior Member had to manage the participation of three representatives, by AVL, where other aspects of the transcript we were referred to in the related appeal demonstrated that there were occasions where those parties spoke over each other. It should not be assumed that the Senior Member, who also had to compile notes from which to prepare his decision, was attempting to observe each representative's conduct on screen at all times. Nor is there an allegation that laughing can be heard on the recording of the hearing such that it should, of necessity, have come to the Senior Member's attention. In that context, at the end of a long hearing and with parties in high conflict, one has to ask, hypothetically, what the Senior Member was to do? Clearly, embarking on an inquiry with the parties' representatives at to what Mr Van Ede had done, or the others observed, was unlikely to result in the just, quick and cheap resolution of the real issues in dispute. Further, simply by Mr Jones bringing his concerns to light, the Member might properly expect that any inappropriate conduct by Mr Van Ede would henceforth be curtailed, if only because the Senior Member would be more alert to look for it. In those circumstances, the Senior Member not taking the matter of Mr Van Ede allegedly laughing any further was within the reasonable bounds of conduct of the hearing. Importantly, there is no suggestion that the allegation that Mr Van Ede was laughing prevented or impacted upon Mr Jones presenting his submissions.
We reject the appellant's ground of appeal that it was denied a fair hearing on this ground.

Ground 3 Procedural Fairness: Failure to Comply with Member Code of Conduct

The appellant has referred to the Member Code of Conduct which was issued by the President of this Tribunal on 9 July 2020, pursuant to s 20 of the NCAT Act. The appellant submits that the Senior Member was in breach of the Code of Conduct in that: 1. his decision was not fair and reasonable; 2. he did not provide a reasonable opportunity for the appellant to present its case as evidenced by his demeanour; 3. his conduct could did not promote access to the Tribunal or promote public confidence in the Tribunal; 4. his conduct resulted in procedural unfairness towards the appellant.
Section 20(1)(d)(i) of the NCAT Act states: 'The functions of the President are - to manage members, including by - (i) developing codes of conduct for members,'
As can be appreciated, issues 1, 2 and 4 are readily identifiable grounds of appeal which do not require recourse to the Code of Conduct. Similarly, in our view, the third issue, if made out, would likely be inextricably linked to other recognised grounds of appeal, such as a breach of procedural fairness. We do not see the Code of Conduct for Members issued pursuant to s20(1)(d)(i) of the NCAT Act, as providing a separate ground for an appeal against the Member's decision but if a Member's failure to comply with the Code constitutes an error on a question of law or another ground upon which leave to appeal may be sought, it is uncontroversial that an appeal may be based on such failure.
Insofar as the appellant has made submissions in support of its appeal that the Senior Member's conduct produced procedural unfairness adverse to it, we have rejected those submissions and grounds of appeal. Insofar as the appellant states that the conduct of the Senior Member resulted in a decision that was not fair and reasonable, we will consider those submissions under the appellant's case on the other grounds.
The appeal based on an alleged failure to comply with the Member Code of Conduct is rejected.

Grounds 4 and 5

Whilst authority compels us to deal with allegations in respect of bias or breaches of procedural fairness first, on the first day of hearing this appeal the solicitor for the appellant informed us that grounds 4 and 5 were primarily relied upon. It is convenient to deal with them together after first considering the appellant's application to rely on new evidence in the appeal.

Leave to appeal on the basis significant new evidence is available

The appellant seeks to rely on a witness statement of Mr D. Armstrong dated 11 May 2022. If leave were to be granted to allow this evidence, it would provide an evidentiary basis for submitting that Clisdells should not have been appointed compulsory strata manager on 25 March 2022 because Mr Armstrong says he was the only strata managing agent employed by Clisdells that had the appropriate experience to be engaged as a compulsory strata managing agent and that he will be leaving Clisdells within 3 weeks of, we infer, 11 May 2022, the date of his statement. Mr Armstrong offers his belief that Clisdells does not have the capacity, the will nor the experience to act as compulsory strata manager once he leaves to continue the compulsory management appointment made by the Tribunal.
Critically, Mr Armstrong's statement also makes clear that Clisdells terms and conditions were actually produced and sent to Ms Harrison, the first respondent, with the letter of consent dated 8 September 2020, meaning that they were in existence when the decision was made, albeit that they were not lodged in the Tribunal. It is also relevant that Mr Armstrong does not state when he formed an intention to cease employment with Clisdells.
Clause 12(1)(c) of Sch 4 of the NCAT Act provides that leave to appeal may be granted where the appellant may have suffered a substantial miscarriage of justice because the Appeal Panel is satisfied "significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)".
The meaning of this clause was considered by an Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said: 23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).
In Cevolani v Site Demolition Pty Ltd [2022] NSWCATAP 252 an Appeal Panel stated at [57] in connection with an appellant applying for leave to appeal on this basis: 'This ground for leave to appeal, does not allow the introduction of new evidence, the desirability of which becomes apparent after the first instance proceedings are concluded and the Tribunal decision handed down.'
It was common ground that at the hearing at first instance, the respondents were seeking the compulsory appointment of Clisdells as compulsory strata manager. This was stated by the Senior Member at [235] of the Reasons. The appellant's Submissions in Reply at first instance dated 17 March 2022, which are attachment 3 to the Amended Grounds of Appeal, specifically address the application to have Clisdells appointed. We find that the appellant has not established that Mr Armstrong's evidence was not available at the time of the hearing at first instance because no person could have reasonably obtained it. Firstly, it is unclear when Mr Armstrong decided to terminate his employment. It may have been well prior to the hearing. Secondly, we infer that Mr Armstrong's statement was obtained because its desirability became apparent after the Tribunal's decision was handed down.
We refuse leave to appeal based on the ground that Mr Armstrong's evidence was significant new evidence that had arisen, being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with. However, that does not prevent it being admitted otherwise.

Admission of Mr Armstrong's statement on any other basis

Generally, further evidence must satisfy three conditions to be admitted on appeal by way of re-hearing: it could not have been obtained with reasonable diligence in the original proceedings; there is a high degree of probability that if admitted there would have been a different result in those proceedings, and; the evidence must be credible: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160, Clarke JA (Sheller JA agreeing); Agripower Barraba Pty Ltd v Blomfield (2015) 317 ALR 202; [2015] NSWCA 30 at [68] per Sackville AJA. Here, the second and third criteria are clearly established. As for the first criteria, on balance, we do not think reasonable diligence on the part of the appellant required it to check with a manager proposed for appointment by another, immediately before the hearing, that the proposed manager's earlier consent to appointment remained valid. In those circumstances, we will admit Mr Armstrong's statement.

Consideration of grounds 4 and 5

Ground 4 is that the Tribunal erred in finding that Clisdells was the most suitable managing agent to be appointed as the compulsory manager.
The Tribunal indicated in its reasons that it preferred the appointment of Clisdells over SMS due to the location of their respective offices and where SMS had "…been the strata managing agent during a period where the Owners Corporation and strata committee have been found to have not functioned satisfactorily even though no allegations have been made against the conduct of SMS: Reasons at [235].
However, this issue can be resolved on a basis not adverted to by the parties, or the Tribunal. In fact, the consent of SMS to appointment as compulsory strata manager was limited to appointment for a period of one year: see its letter addressed to the strata plan dated 21 September 2020 at p 44 of the bundle headed "Exhibit NCAT - 3, Claim 2022/00114622". Where the Tribunal determined that the appointment should be for two years, there was no valid consent by SMS to the appointment the Tribunal had determined it should make. On that basis, the Tribunal was precluded from appointing SMS.
We accept that we have dealt with this issue on a basis not raised by, or with, the parties. However, once it is appreciated that the Tribunal determined that a two-year appointment should be made; that its finding in that regard is unchallenged; that no expanded consent was given in the affidavit of Mr Adamson of SMS in the proceedings at first instance (dated 9 August 2021); and no oral evidence taken from a representative of SMS, our conclusion is inescapable.
Even if we are found to be wrong, we would not have granted leave to appeal on this ground. We were not taken to any of the oral submissions made by the parties at first instance as to the factors upon which the Tribunal should ultimately differentiate between the two proposed appointees. Certainly, for reasons we will come to in respect of ground 5, it does not seem to have been on any material difference in their terms and conditions. The Tribunal was exercising a broad evaluative judgment in deciding between the two proposed managers. We accept the appellant's criticism of this aspect of the decision insofar as it relied upon the fact SMS had been the strata managing agent during a period where the Owners Corporation and strata committee had been found to have not functioned satisfactorily is arguable. The appellant is correct in its submission that when acting as manager by agreement, SMS was bound to act on the decisions of the strata committee or Owners Corporation. However, in relation to the overall conclusion that Clisdells was to be preferred, that issue makes error in the Tribunal's conclusion no more than merely arguable and there is no issue of principle or public importance.
Ground 5 is that the documents filed by the respondents at first instance did not include a copy of Clisdells' terms and conditions for its appointment as compulsory strata managing agent as required by s 237(5) of the SSMA. That section of the SSMA states: 'A strata managing agent may be appointed as a consequence of an order under this section on the terms and conditions (including terms and conditions relating to remuneration by the owners corporation and the duration of appointment) specified in the order making or directing the appointment.'
The appellant refers to the letter from Clisdells dated 8 September 2020, in evidence before the Tribunal at first instance, which states: 'We agree to being compulsorily appointed by NCAT as Managing Agents of Strata Plan 74442 as per the terms and conditions set by NCAT and our attached managing agent agreement. We can confirm we have experience in compulsory management in large and small strata plans with legal and financial difficulties. Attached are our fees and charges.'
The appellant also relied on an index to a bundle of documents filed by the respondents in the first instance proceedings which refers to a document described as 'Consent to act as compulsory strata manager' which is paginated as page 197. The inference to be drawn from this index is that it was only the Clisdells 8 September 2020 letter which was included in the bundle of evidence and not the managing agency agreement or the fees and charges which were referred to as being attached. So much was admitted by the participating respondents when the appellant sought leave to reopen its case in the appeal after the issue became potentially contentious.
The appellant submits that the appointment of a compulsory strata manager without its terms and conditions being in evidence was an error of law because the power of the Tribunal to make an order pursuant to s 237(5) of the SSMA was not enlivened where the Tribunal did not have in its possession the terms and conditions for compulsory appointment, which were required to enliven the Tribunal's jurisdiction.
Importantly, given that Clisdells is now the controlling mind of the appellant, it was never asserted that no management agreement or terms and conditions were brought into existence to be sent with the 8 September 2020 letter. Nor, as far as we are aware, has Clisdells ever asserted that it cannot be remunerated for its subsequent work because no such agreement or terms and conditions exist. As we noted earlier, Mr Armstrong's further evidence, which we accept on the basis that it is unchallenged, makes it plain that the agreement and terms and conditions were produced and sent to Ms Harrison. The appellant seems to have made a forensic decision not to subsequently provide a copy to the respondents or to the Appeal Panel. We infer that is on the basis of the position outlined in Mr Armstrong's statement that Clisdells does not want the continuing appointment, and the inference is fortified by Clisdells causing the appellant to maintain the appeal. Quite why Ms Harrison has not sought leave to bring a copy into evidence in the appeal is unexplained.
Section 237(5) of the SSMA makes it plain that the appointment of a compulsory strata manager is subject to the exercise of a discretion by the Tribunal to determine the terms and conditions of the appointment, including those relating to remuneration.
However, we do not agree that the absence of those terms and conditions from the evidence robs the Tribunal of jurisdiction, that is authority to decide the issue. Rather, if the terms and conditions did not exist or were not sufficiently identified in the Tribunal's order the Tribunal may properly be said to have constructively failed to exercise its jurisdiction, or to have made a decision beyond power. However, that is not the case here. The terms and conditions did exist and were identified with sufficient clarity in the Tribunal's order. Therefore, we are satisfied that the order appointing Clisdells on the terms and conditions as identified in the order was within both jurisdiction and power.
That is not to say that the Tribunal appointing Clisdells in the absence of the evidence was ideal. Certainly, the absence of the evidence was fertile ground for error if the Tribunal had to decide between the appointment of two managers, where the exercise of discretion as to which manager should more appropriately be appointed was required. However, again, that did not lead to error here for the reasons we have given in respect of ground four, but also for another reason.
In adversarial proceedings of this nature the role of the Tribunal, once it ensures it keeps itself within jurisdiction and power, is to fairly determine the issues raised by the parties. In this matter, there is no suggestion that the appellant, or any other party raised the absence of Clisdells' terms and conditions from evidence at first instance as a basis on which they should not be appointed. That alone could have led to us not allowing the issue to be agitated for the first time in the appeal, on the principles outlined in Herbert v NSW Land and Housing Corporation [2020] NSWCA 80 and the cases there cited. It seems clear that if the issue had been raised it would likely have affected the course of evidence, which would have been relevant to our discretion to allow this ground to be agitated. However, that point was not taken by the respondents.
Just as importantly, though, there is no suggestion or evidence that any difference in the terms and conditions proposed by Clisdells and those of SMS was raised as an issue for the Tribunal's consideration. For that reason, the Tribunal was entitled to proceed on the basis that examination of the respective terms and conditions was not required. We are fortified in that view by the fact that it appears whilst SMS' letter of consent dated 21 September 2020 said that it attached both its Company Licence under the Property and Stock Agents Act and its "standard agency agreement conditions", its terms and conditions for appointment as a compulsory strata manager were not actually put into evidence either, noting that the licence is appended at [45] of the bundle but not the agreement with conditions. SMS' voluntary agreement, signed between it and the appellant on 22 February 2021 was in evidence, but it relates to a different style of appointment.
We are left with the fact that Clisdells does not want to be appointed, but no evidence that was known by the Tribunal or that the Tribunal erred in appointing Clisdells as it did. This appeal is not the opportunity to remedy that position simply because the appellant has conducted an ex post facto trawl through the proceedings and decision at first instance to identify that matter now. If that issue needs to be remedied, anyone meeting the standing requirements of s 237(8) of the SSMA may seek review or revocation of the appointment under SSMA, s 237(7) in the Consumer and Commercial Division. Furthermore, Clisdells was not a party to the Tribunal's orders. No doubt that is, at least in part, why s 237(4)(b) of the SSMA was drafted to require the consent of the proposed compulsory strata manager. In terms of potential injustice, there is no evidence before us that Clisdells does not have authority, under its terms and conditions, to simply resign its appointment.
There is no basis for leave on grounds 4 and 5 and the appeal should be dismissed. We will make directions to determine any issues as to costs, which were sought by the first to third respondents in their written submissions.
Our orders will be: 1. The time for filing the Notice of Appeal is extended to 11 May 2022. 2. Leave to appeal in respect of grounds 1 - 3 is granted to the extent it is required. 3. Leave to appeal is otherwise refused. 4. The appeal is dismissed. 5. The Appeal Panel notes that the first to third respondents have applied for their costs of the appeal: 1. Those parties are to lodge in the Appeal Registry and give to the other parties their evidence and submissions in support of the application for costs, within 14 days. 2. Any submissions and evidence in response to the costs application are to be lodged with the Appeal Registry and given to those parties within 14 days thereafter. 3. Any submissions in reply are to be lodged with the Appeal Registry and given to the other parties within 7 days thereafter. 4. Submissions on the application for costs by each party are not to exceed five pages in length. 5. The Appeal Panel may dispense with a hearing and determine any application for costs on the basis of the written submissions and evidence provided. If the parties oppose this course, they should make submissions on this issue when complying with the directions as to their submissions on the substantive costs application. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of the application.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2023

Property, and Stock Agents Act 2002(NSW)

The Owners - Strata Plan No. 74442 v Harrison

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

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Legislation Cited (3)

Cases Cited (21)

Cited By (1)