The Owners – Strata Plan no 74482 v YNW

1. The basic facts relevant to the appeal are not controversial. They are as follows:

(1) On 3 September 2024 the Tribunal made directions by which a timetable was imposed upon the parties for the filing and serving of their material in support of or in opposition to the Respondent's application. Subsequently, the timetable was extended.

(2) On 29 November 2024 the Respondent served her evidence. This consisted of a report by Endeavour Engineering (John Riad), a report by Forensic Engineering Australia and a report on mould by SLR Consulting. By the amended timetable the Appellant had until 17 January 2025 to file and serve its evidence.

(3) By email of 2 December 2024, the Appellant's solicitor informed the Respondent's solicitor that he (the Appellant's solicitor) was liaising with a number of experts as to their availability to carry out an inspection of the Respondent's lot. He asked whether the Respondent could provide a range of dates over "the next 2-3 weeks" when an inspection of the Respondent's lot would be possible.

(4) The Respondent's solicitor replied on the same day (2 December 2024) by email stating that the Respondent would provide access to her lot "on Wednesday, Thursday and/or Friday this week". The email further stated that the Respondent would be overseas for six weeks from 9 December 2024 and that access can be "facilitated" upon the Respondent's return to Australia from 3 February 2025 onwards.

(5) On 6 December 2024 an expert engaged by the Appellant conducted an inspection of the Respondent's lot. The expert was Mr Carlo Perri of CRF Constructions. The Appellant did not ultimately rely on any evidence from Mr Perri.

(6) On 9 December 2024 the Tribunal issued a Notice of Hearing advising the parties that the Respondent's application was listed to be heard on 19 February 2025.

(7) On 4 February 2025 the Appellant's solicitor emailed the Respondent's solicitor requesting advice as to when it would be possible for an engineer, Mr El Safty, to attend the Respondent's lot.

(8) On the same day (4 February 2025) the Respondent's solicitor replied by email stating that access to the Respondent's lot can be provided on 7 February 2025.

(9) The Appellant's solicitor tendered an affidavit at the first instance hearing in which he stated that Mr El Safty was not available on 7 February 2025. On 14 February 2025 the Appellant's solicitor emailed the Respondent's solicitor seeking the Respondent's consent to the proceedings being adjourned on 19 February 2025.

(10) By email of 17 February 2025 the Respondent's solicitor wrote to the Appellant's solicitor stating that her client did not consent to the hearing being adjourned on 19 February.

1. The subject matter of the appeal is the Tribunal's decision to refuse the Appellant's application that the hearing be adjourned. The Tribunal has provided written reasons for that refusal, which may be summarised as follows:

(1) The reasons state that the Appellant's solicitor sought an adjournment "principally on the basis that the Respondent's expert has not had an opportunity to inspect the subject lot." In support, the Appellant relied upon a witness statement by Mr El Safty (dated 18 February 2025) and an undated affidavit of the Appellant's solicitor.

(2) The Tribunal made reference to the Tribunal's guidelines concerning applications for adjournments in which it is stated that the "overriding principle is that when a date and time has been set for a hearing it will go ahead on that date and at that time." The Tribunal referred to the fact that there is a significant amount of backlog with respect to cases in the Consumer and Commercial Division and that a "block of three hours allocated" should not be thrown away lightly.

(3) The Tribunal found that the parties were on notice of the orders made in this matter "as early as 3 September 2024. If the Respondent is aware that it is unable to meet the evidence deadline, it was open to the Respondent to apply for an extension and/or to apply for an adjournment at the earliest opportunity."

(4) The Tribunal found that in this case the adjournment application was made on the morning of the hearing and that constituted a breach of the Tribunal's guideline (which requires that a party requesting an adjournment must make the request as soon as that party realises that an adjournment is necessary, and preferably at least seven days before the hearing date).

(5) The Tribunal stated that "Accordingly, I refuse the application, and the matter will now proceed".

1. A Notice of Appeal was lodged on 18 March 2025, and pursuant to a direction made on 2 April 2025, the Appellant lodged an Amended Notice of Appeal on 9 April 2025. The grounds of the amended appeal may be summarised as follows:

(1) Ground 1: the Appellant was denied procedural fairness and natural justice. The appeal raises a question of law. The refusal to adjourn deprived the Appellant of an opportunity to respond to, and subsequently be heard on, the evidence served on 29 November 2024. Additionally, the Appellant's opportunity to conduct an inspection was limited.

(2) Ground 2: the Tribunal failed to give proper weight to certain evidence. This ground also raises a question of law. In particular, the Tribunal erred by failing to give proper weight to the corroborative effect of the evidence of Mr El Safty which supported the claim that the Appellant was given a limited opportunity before the hearing to carry out an inspection and respond to the Respondent's evidence.

(3) Ground 3: the Tribunal erred on a question of law by identifying the wrong issue or asking the wrong question. The question was not whether the Appellant, by making the application on the morning of the hearing, had applied for an adjournment at the earliest opportunity. The correct question was whether the Appellant had been given a reasonable chance to present its case before the Tribunal if the adjournment application was refused.

(4) Ground 4: the Tribunal drew the wrong inference of fact that was not available from the facts as found. This ground also raises a question of law. This ground concerns the Tribunal's finding that the parties were on notice of the Tribunal's procedural orders from 3 September 2024 and that if the Appellant was aware that it could not meet the evidence deadline it should have sought an extension or an adjournment at the earliest opportunity. From these facts, the Tribunal inferred that the Appellant had not applied for an extension at the earliest opportunity. The inference was incorrect because the Appellant was only served with the relevant evidence "after hours" on 29 November 2024 and was not informed until 2 December 2024 that access to lot 3 would be restricted until 3 February 2025. The unavailability of Mr El Safty occurred on 7 February 2025 and whether the Appellant made the application at the earliest opportunity should be assessed by reference to that date.

(5) Ground 5: the decision was unreasonable. This ground raises a question of law. This ground contends that the Respondent put the Appellant in a difficult position by restricting access and that it was also unreasonable for the Tribunal to consider that the adjournment application was not made at the earliest opportunity.

1. The Respondent has lodged a Reply opposing the appeal. We will deal with the substance of the Reply when recording the Respondent's submissions.

1. In the following paragraphs we summarise the Appellant's submissions including those given orally at the hearing of the appeal.
2. Ground 1: the Appellant submitted that a refusal to grant an adjournment that deprives a defendant of a reasonable opportunity to prepare their case constitutes a breach of natural justice. The Appellant cited R v Thames Magistrates Court; ex parte Polemis [1974] 2 All ER 1219 (Polemis) in which the Court of Queen's Bench stated that natural justice required that a defendant be given a reasonable opportunity to present its case, and further, that that right necessarily extends to a reasonable opportunity to prepare the case. Here, the Tribunal's refusal to adjourn had the effect of denying the Appellant a reasonable opportunity to present its case. This included a denial of the opportunity to respond to the evidence served by the Respondent. There was a short length of time for the Appellant to respond to the Respondent's expert reports. In addition, an inspection to prepare an expert report was important for the reasons outlined by Mr El Safty, which are summarised below.
3. The Appellant's submissions referred to paragraph 4 of Mr El Safty's statement. In that paragraph Mr El Safty expresses the opinion that the report authored by Mr Riad "is aiming at technical failures in construction, rather than amenity and the OC's obligations under the [Strata Act]". Mr El Safty stated that the matters raised in the Riad report "need to be examined against the Owners Corporation's responsibility pursuant to s 106 of the [Strata Act] which are not necessarily congruent to matters which would be dealt with under a building defect claim."
4. At the hearing of the appeal Mr Lin took us to parts of the report prepared by Endeavour Engineering (a copy of which is contained in the Appeal Book). At page 103 of the Appeal Book it is stated that the pipe storm outlet on the Respondent's balcony is "vastly insufficient" and below the minimum standards specified in AS3500.4. At page 105 of the Appeal Book it is stated that the installation of a water stop angle is not at the angle required by the relevant standards. A further example appears on page 113 of the Appeal Book where the author of the Endeavour Engineering report states that the failure to install a water stop in breach of the National Construction Code will allow water to track out of the bathroom and into the living room and other areas. Mr Lim contended that these references illustrate that the Appellant was not in breach of its obligations under s 106 of the Strata Act but rather that the builder who built the building may be liable for damages or a rectification order in respect of defects.
5. In support of ground 2, the Appellant's submissions state that the Tribunal failed to give proper weight to the corroborative effect of the evidence of Mr El Safty which supported the contention that the Appellant was given a limited opportunity before the hearing to carry out an inspection and respond to the Respondent's evidence. The decision under appeal does not reveal that the Tribunal considered the affidavit evidence of Mr El Safty.
6. In support of ground 3, the Appellant's submissions state that the Tribunal asked the wrong question by its finding that the parties were on notice as early as 3 September 2024 and it was open to the Appellant to apply for an extension or an adjournment. As stated earlier, the Appellant submitted that the correct question was whether the Appellant had been given a reasonable opportunity to present its case before the Tribunal.
7. In support of ground 4, Mr Lin took us to a portion of the transcript of the hearing at first instance in which the member asked why nothing had been done to seek an adjournment earlier or to apply for an extension of the timetable. In reply, the solicitor for the Appellant stated that that was "an error on our part" and that "we still had hope that in early February it might be possible to organise access to enable us to put on evidence and have the matter run today, unfortunately that's not able to be done." Mr Lin submitted that to the extent that what occurred could be described as an error on the part of the Appellant's solicitor, the consequences of the error should not be visited upon the Appellant.
8. In support of ground 4, the Appellant submitted that the Tribunal's inference that the Appellant did not apply for an adjournment at the earliest opportunity was an inference that should not have been drawn because the evidence admitted of other conclusions. An alternative inference was possible, namely that the Appellant acted as soon as practicable in making the adjournment application. The Appellant only became aware of the evidence being relied upon by the Respondent on 2 December (shortly after service of the material on 29 November) when the Appellant was informed that access to the Respondent's lot would be restricted until 3 February 2025. There was only one inspection opportunity following the Respondent's return, namely 7 February 2025.
9. The Appellant submitted that the better inference is that the Appellant applied for an adjournment application at the earliest opportunity when it learnt that access could not be organised on 7 February 2025 and there were no further available dates.
10. In support of ground 5, the Appellant submitted that the Appellant was placed in a difficult position by the limited opportunity to inspect in early December 2024 and then on the Respondent's return in February 2025. It was unreasonable for the Tribunal to consider that the adjournment application was not made at the earliest opportunity, given that the Appellant did not know the evidence it had to respond to until 2 December 2024 on which date the Appellant learnt that access to the Respondent's lot would be restricted.

(1) Leave for the Appellant to be legally represented to be revoked on the basis that the Appellant's legal representative has not been formally engaged in accordance with s 103 of the Strata Act.

(2) The appeal be dismissed.

(3) There be an order for costs of the appeal in favour of the Respondent.

1. The Respondent submitted that there has been no denial of procedural fairness and that the Appellant has been afforded a fair and reasonable opportunity to present its case. For reasons not explained, the Appellant did not engage legal representation for almost four months after the commencement of the first instance proceedings, on 13 November 2024. The Appellant's first request for access to the Respondent's lot was provided when Mr Perri conducted an inspection on 6 December 2024. With respect to the second request for access, the Respondent granted access on 7 February 2025. No one attended to inspect the lot.
2. In respect of ground 1, the Respondent submitted that the Appellant had been afforded a fair and reasonable opportunity to present its case. The Respondent's submissions also made reference to the Appeal Panel decision in Bartel v Ryan [2018] NSWCATAP 231 for the proposition that the Appellant is bound by the conduct of its case and that no circumstances arise which would allow a party (the Appellant), after the case has been decided against it, to raise a new argument which, whether deliberately or by inadvertence, the Appellant failed to put during the hearing when they had an opportunity to do so: see Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 8; [1986] HCA 33 (Coulton).
3. The Respondent further submitted that the Tribunal's failure to grant an adjournment was not an error of law, citing Rodny and Communications Power Incorporated (Aust) Pty Ltd v Stricke & Ors [2019] NSWCATAP 150. The Respondent submitted that, based upon Rodny v Stricke the Tribunal must have regard to the following factors (when considering an adjournment application):

(1) The history of the matter, particularly recent events.

(2) The length of time since the Appellant became aware that the matter had been set down for hearing and whether there could have been any attempts by the Appellant to proceed on the original hearing date.

(3) The guiding principle of the Tribunal, as enshrined in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) for the just, quick and cheap resolution of the real issues in the proceedings.

(4) Whether or not the case could still proceed in the current circumstances and the level of injustice to the parties. The Respondent was ready, willing and able to proceed with the hearing and was not and cannot be held responsible for the Appellant's failure to comply with the Tribunal's deadlines.

(5) The fact that, if an adjournment were to be granted, there would be wasted costs and some additional costs in the future.

(6) Whether there was any unwillingness by the Appellant to take steps to avoid the requirement for an adjournment. No reason has been provided as to why the Appellant failed to make the adjournment application earlier or seek an extension of time to file its evidence. Further, the Respondent submitted that the Appellant has provided no reason as to why it elected to change experts (ie. from Mr Perri). Further, there was sufficient time for the Appellant to file an expert report from Mr Perri. The Respondent submitted that it is open to the Appeal Panel to draw the adverse inference that any information contained in a report from Mr Perri would have been damaging to the Appellant's case. Further, the Respondent submitted that it was open to the Appellant, since the commencement of the first instance proceedings on 2 August 2024, to carry out its own investigations on the common property defects identified as part of the Respondent's application.

1. With respect to ground 2, the Respondent submitted that the Tribunal apportioned proper weight to the evidence. In respect of the Appellant's assertion that the Tribunal erred by failing to give proper weight to the evidence of Mr El Safty, the position is that Mr El Safty's evidence provided no probative value to the issues in dispute between the parties, but merely supplements the Appellant's argument as to why an adjournment should be granted.
2. At the hearing, Ms Pham for the Respondent disputed the Appellant's contention that the Owners Corporation may not have an obligation under s 106 in circumstances where the complaints of the Respondent concerned defects in the construction of the building. Ms Pham referred to the judgment of Brereton J in Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157. In that judgment his Honour was dealing with the Strata Schemes Management Act 1996 (NSW) and in particular s 62 which is in the same terms as s 106 of the Strata Act. His Honour stated that the duty imposed upon the Owners Corporation is a duty to maintain, and keep in a state of good and serviceable repair, the common property. The duty is not one to use reasonable care to maintain and keep in good order the common property, nor one to use best endeavours to do so, nor one to take reasonable steps to do so, but a strict duty to maintain and keep in repair [3].
3. With respect to ground 3 the Respondent submitted that the Appellant would, in addition to demonstrating that the Tribunal asked the wrong question, need to establish that this substantially affected the exercising of power: See Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [82]. The Respondent submitted that there is no evidence that there has been a substantial miscarriage of justice. The Respondent submitted that in addition to considering questions of fairness, the Tribunal must also have regard to factors identified as general principles applicable to any adjournment request. These include taking into account the need to manage cases and hearings fairly and efficiently and allowing an adjournment only if the party requesting it has a good reason and it is fair in all the circumstances to adjourn the hearing.
4. With respect to ground 4, the Respondent submitted that this ground raises mixed questions of fact and law: see Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204. The Respondent submitted that the "primary facts" (ie. that the parties were on notice of the Tribunal's procedural orders from 3 September 2024 and if the Appellant was aware that it could not meet the evidence deadline it should have sought an extension or an adjournment at the earliest opportunity) strongly support the inference that the Appellant failed to seek an adjournment at the earliest opportunity.
5. The Respondent submitted that it should have been apparent to the Appellant that, in circumstances where it became aware that the Respondent could provide access to her lot on 7 February 2025, the Appellant should have sought an adjournment from the date it became aware that Mr El Safty was not available to attend the Respondent's lot.
6. With respect to ground 5, the Respondent submitted that the Tribunal's decision was reasonable. Having regard to the following:

(1) Section 51 of the NCAT Act notes that the Tribunal's power to grant an adjournment of the final hearing is a discretionary power and that it is open to a Tribunal to refuse an adjournment application.

(2) The Appellant was given a reasonable chance to present the adjournment application to the Tribunal and did so at the hearing on 19 February 2025.

(3) The Appellant's expert was allowed access to the premises on 6 December 2020. Access was also granted for 7 February 2025, but Mr El Safty did not attend. Nor did he attend the hearing on 19 February.

(4) The Notice of Hearing was issued to the parties on 9 December 2024, more than two months prior to the hearing.

1. The Respondent's submissions also contend that the appropriate processes had not been undertaken by the Appellant to engage legal services for the purposes of the appeal. Under sch 1 pt 2 s 7 of the Strata Act an Owners Corporation is required to give notice of a general meeting to each member of the Owners Corporation at least seven days prior to the meeting. Legal services can be specially resolved by a strata committee for up to $3,000 under s 26(2) of the Strata Act and, in matters of urgency, up to $15,000 under reg 26(1) of the Strata Schemes Management Regulation 2016 (NSW) (the Strata Regulation).
2. The Respondent submitted that the strata committee of the Appellant convened a meeting of that committee on 3 June 2025 to approve the engagement of legal representation. The Respondent submitted that there is no authorisation by the strata committee or by the Owners Corporation for the appeal to have been commenced. The Respondent initially submitted that as a consequence the appeal should therefore be dismissed. The Respondent referred to and relied upon the decision in The Owners - Strata Plan no 70798 v Bakkante Constructions Pty Ltd [2013] NSWSC 848 (Bakkante).
3. Ms Pham for the Respondent stated at the hearing of the appeal that the point of the submissions concerning s 103 of the Strata Act was relied on only to foreshadow that were we, the Appeal Panel, to consider awarding costs in favour of the Appellant, such costs could only be awarded with respect to costs incurred after 3 June 2025 (and not before) by reason of the fact that there was no authority to engage legal representation prior to that date.
4. The Respondent submitted that the appeal should be dismissed and if that submission is successful we should award costs in favour of the Respondent.

1. The Appellant submitted that s 103(4) of the Strata Act provides that a failure by an owners corporation for the strata committee to obtain an approval under that section does not affect the validity of any proceedings or other legal action taken by the owners corporation.
2. The Appellant also submitted that the decision under appeal reflects a lack of balance, concentrating only on the provisions of the Tribunal's practice note. The Appellant relied upon the judgment of the Full Federal Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh).
3. At [44] of Singh, the court referred to the concept of legal unreasonableness and stated that an inference that a decision was legally unreasonable can be inferred where the decision has the character of being arbitrary, capricious, or without common sense.
4. In response to a question from the Appeal Panel as to the basis upon which leave to appeal should be granted (having regard to the fact that the decision under appeal concerns an interlocutory decision) the Appellant submitted that there was clearly a clear contestable point between the parties involving the argument that the Appellant had no obligation to attend to matters complained of by the Respondent given that, the Appellant contended, the defects were of a construction nature rather than relevant to obligations under s 106 of the Strata Act.

1. Section 4 of the NCAT Act contains the definition of an interlocutory decision. It includes a decision of the Tribunal concerning any one of the listed matters. One of the listed matters is the "granting of a stay or adjournment".
2. Section 80 of the NCAT Act provides that an appeal against an internally appellable decision (which is the case with respect to this appeal) may be made to an Appeal Panel and that such an internal appeal may be made in the case of an interlocutory decision, at first instance, with the leave of the Appeal Panel (s 80(2)(a)).
3. Accordingly, the Appellant must establish that the Appeal Panel should grant leave.
4. 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:

(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.

1. In our view, of the above matters, the only one possibly relevant to this appeal is the one concerning an injustice which is reasonably clear or whether there has been an error that is plain and readily apparent which was central to the Tribunal's decision. In our view the other matters for consideration do not arise in this appeal.
2. We accept that the principles described earlier and recited in the Polemis judgment apply to this Tribunal. In other words, in our view, it is uncontroversial that a party must be given a fair and reasonable opportunity to present their case to the Tribunal and that opportunity includes the opportunity to be able to prepare its case, and in the circumstances of this matter the opportunity to obtain the evidence of an expert. This principle is confirmed in s 38 of the NCAT Act which incorporates the notion that the rules of natural justice apply to the Tribunal (s 38(2)). However, in addition, the Tribunal is required to comply with the guiding principle set out in s 36, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
3. These considerations are reflected in the Tribunal's guideline, a portion of which is set out in the decision under appeal. For example, the guideline states that the overriding principle is that cases should proceed on the date and time set down. However, an adjournment can be granted for good reason and if it is fair in all the circumstances. An obligation is imposed upon a party contemplating an adjournment to make an application as soon as that party realises that an adjournment is necessary.
4. In considering ground 1 of the appeal, it is instructive to reflect on the chronology summarised earlier. As at 9 December 2024 (or perhaps by the next day), the Appellant knew:

(1) That the Appellant's evidence was required by 17 January 2025 and that the hearing was to take place on 19 February 2025.

(2) That access to the Respondent's lot had been given to Mr Perri and therefore his evidence as to what he saw there was available to the Appellant.

(3) The Appellant knew that the Respondent was away until 3 February 2025.

(4) There was no impediment to the Appellant having access to common property.

1. In our view, there was no explanation given by the Appellant in respect of the following matters:

(1) What steps had been taken to inspect the common property. Mr El Safty said that he needed to look at the common property. The Respondent's consent to inspect the common property was not required.

(2) When it was thought necessary to engage Mr El Safty and what steps were taken to obtain his availability to inspect the Respondent's lot other than the request made on 4 February.

(3) What steps were taken (if any) to obtain another date for Mr El Safty after it was ascertained that he could not be available on 7 February 2025.

1. Having regard to the chronology, it is our view that the Appellant did not take sufficient steps to either comply with the deadline of 17 January 2025 for the provision of its evidence or, to obtain from the Tribunal an extension to the then timetable and perhaps consequentially an adjournment of the hearing. The only application for an adjournment was lodged on the day before the actual hearing.
2. Indeed, there is no explanation as to what occurred, if anything, between 9 December 2024 and 4 February 2025. Even taking into account the fact that that period involved Christmas and New Year holidays it is our view that the Appellant has not assisted its case by providing no evidence as to what steps were taken during that period and we infer that no steps were taken.
3. It is our view that the Appellant did have a reasonable opportunity to either prepare its evidence or to seek after 9 December 2024 a revised date for service of its evidence and, if necessary, adjournment of the proposed hearing. There has been no denial of procedural fairness or natural justice. Ground 1 is rejected.
4. For the same reasons as for ground 1, ground 2 is rejected. In addition, it is relevant to record that the Tribunal was aware of the evidence of Mr El Safty as the decision under appeal expressly acknowledges that the Appellant relied on his evidence to support the contention that Mr El Safty had not had an opportunity to inspect the Respondent's lot. The fact that the Tribunal made no other reference to that evidence is understandable having regard to the basis of the Tribunal's decision to refuse to adjourn the hearing. That basis was the contention of the Appellant that there was insufficient time to organise an expert given the Respondent's absence from 9 December to 3 February and the Tribunal's view that if the Appellant was "aware that it is unable to meet the evidence deadline, it was open to the [Appellant] to apply for an extension and/or apply for an adjournment at the earliest opportunity" as required by the Tribunal's guideline concerning adjournment applications. In our view the evidence of Mr El Safty seen by reference to the Tribunal's reasoning was given appropriate weight.
5. Ground 3 is based upon a misinterpretation of the Tribunal's reasons. In our view, the Tribunal did not refuse the adjournment application simply because it was made on the eve of the hearing when it could have been made earlier. The application was also rejected because the Appellant had had a reasonable opportunity to prepare its case and, as well, an opportunity to apply for an extension of the timetable and/or to apply for an adjournment if the Appellant considered in December that it could not meet the January deadline for service of its evidence. This is expressly stated in the Tribunal's reasons. This ground is rejected.
6. Ground 4 is rejected as it relies upon a misinterpretation of the Tribunal's reasons. In our view the Tribunal did not infer that the Appellant should have made an adjournment application shortly after 3 September. The Tribunal referred to the evidence deadline (17 January 2025) and clearly considered that knowledge of the Respondent's absence was the trigger for considering whether the evidence deadline could be met.
7. In our view, there is no basis for a conclusion that the Tribunal's decision was legally unreasonable in the sense identified in cases such as Singh. Indeed, we are of the opinion that the Tribunal's reasons were reasonable and in accordance with principle. Ground 5 is rejected.
8. As the decision under appeal is an interlocutory decision leave is required. We have already set out the considerations for the grant of leave. In this case, the only potential ground was that concerning a clear injustice. It was always within the Appellant's power to produce a report concerning the common property with a view to developing a basis for the argument that the Appellant had not been in breach of s 106 of the Strata Act. No such evidence was offered.
9. It has also been within the Appellant's power to seek to obtain consent from the Respondent to inspect the Respondent's lot since publication of the decision under appeal and had such a request been made and had such an inspection occurred, it would have been possible for the Appellant to produce evidence, again showing no breach of s 106. The failure to make any attempts to either inspect the common property or seek to inspect lot property leads us to the conclusion that we are not persuaded that the Appellant has demonstrated a clear injustice. We acknowledge that had such evidence been provided in this appeal it may have been objected to by the Respondent for the reason that the issue was not raised below and that the Appellant should be bound by the way it ran its case at first instance: see Coulton. In conclusion we do not think there is a basis for granting leave to appeal.
10. After the hearing of the appeal the solicitor for the Respondent made application for the name of the Respondent and the name of a person related to the Respondent to be restricted and not disclosed or published. The application seeks an order under s 64(1)(a) under the NCAT Act. The reason for the application is that there are circumstances affecting the Respondent and the related person which might impact upon them were their names and their place of abode to become public. The orders proposed by the Respondent are consented to by the Appellant. Both parties consent to our determination of this application being decided on the papers by dispensing with a further hearing. We are satisfied that this application can be adequately determined in the absence of the parties by considering written submissions and the fact that the proposed orders are not opposed. In particular we are satisfied that it is desirable to make the proposed order as set out below. It is necessary to add that the name of the Respondent has been replaced with the letters YNW and that, as the name of the related person does not appear in this decision, a pseudonym is not required for that person. However, the order below binds the parties to this appeal both in respect of the Respondent and the related person.

(1) Leave to appeal refused.

(2) Appeal dismissed.

(3) If the Respondent seeks costs of the appeal, it must file and serve submissions 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 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.

(6) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the name of the Respondent and the related person named in the Respondent's application is not to be disclosed or published.

(7) A hearing of the Respondent's application is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.