The Owners – Strata Plan No 85385 v Barnett

Cartwright v MacCormack [1963] 1 WLR 18

Cooper v The Owners - Strata Plan no 58068 [2020] NSWCA 250

EB9 and 10 Pty Ltd v The Owners SP 934 [2018] NSWSC 464

Flight Centre Travel Group Ltd t/a Aunt Betty v Goel [2021] NSWCATAP 44

Lewis v The Owners of Strata Plan No 32924 [2025] NSWCATAP 72

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104

Pollack v The Owners - Strata Plan no 2834 [2020] NSWSC 784

PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312

Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd [2024] NSWCA 174

Quo Warranto Pty Ltd v Goodman [2002] NSWCATAP 315

The Owners Strata Plan no 35402 v Seiwa Australia Pty Ltd [2007] NSWCA 272

Owners of Strata Plan no 3397 v Tate [2007] NSWCA 207

The Owners - Strata Plan no 62713 v Liberant [2002] NSWCATAP 80

Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429

Vickery v The Owners - Strata Plan no 80412 (2020) 103 NSWLR 252

1. The Appellant's written submissions provide an adequate overview of the background to this appeal as follows:

(1) The appeal is from a decision handed down on 7 July 2025 (the Decision).

(2) The Appellant is the owners corporation for Strata Plan no 85385 (the Strata Plan) and the Respondents are lot owners in the Strata Plan.

(3) The proceedings concerned a claim by the Respondents that the Appellant had failed to maintain timber decking on balconies and terraces.

(4) In the Tribunal at first instance, the key issues in dispute were:

(a) whether or not the timber decking on balconies and terraces was common property or lot property;

(b) If the timber decking was lot property, whether or not the Appellant is responsible for its maintenance by reason of the by-laws applicable to the Strata Plan; and

(c) whether or not the Tribunal should determine the manner in which the Appellant repairs and maintains that property by making an order prescribing how the Appellant is to effect any repairs.

(5) The Tribunal determined that the timber decking was common property and ordered that the Appellant carry out works in reliance upon a report the Appellant had received in November 2023.

1. The Appellant's grounds of appeal will be outlined subsequently but first, it is necessary to set out in some detail the reasoning recorded in the Decision.

1. Four lot owners in the Strata Plan contend that the Appellant has breached its duties under ss 106(1) and (2) of the Strata Schemes Management Act 2015 (NSW) (the Strata Act) by failing to properly maintain and keep in a state of good and serviceable repair, or renew or replace, timber decks on the balconies or terraces of their apartments. They also claim that the Appellant has failed to comply with by-law 26, which makes it responsible for major maintenance and replacement of the timber decks. A further claim is also made by one lot owner based on a settlement agreement arising out of a mediation session. The lot owners seek orders for replacement of the timber decks.
2. The Appellant denies that the timber decks are common property to which s 106 applies and further claims that by-law 26(1) is void for uncertainty, and has been repealed or varied by subsequent by-law 11. The Appellant also contends that the settlement agreement is not binding on it.
3. With respect to by-law 11, the Respondents claim that the Appellant lacked power to make it or that it is harsh, unconscionable or oppressive. The Appellant claims that the registration of the by-law in its current form was unauthorised.
4. The Decision records at [6] that it was agreed by the parties that the issues relating to by-law 26 do not arise for consideration on a finding that the timber decks are common property. The Appellant accepts that its claims concerning by-law 26 are premised on a finding that the timber decks are lot property. At [7] the Decision recorded that it was also agreed that the issue of whether the settlement agreement should be given effect only arises in the event that the previous issues are resolved in favour of the Appellant.
5. The Strata Plan was registered on 2 August 2013 and, at that time, the Strata Schemes (Freehold Development) Act 1973 (NSW) (the 1973 Act) was in force. The Decision stated that the provisions of the 1973 Act are applicable to determining whether the timber decks are common property or lot property.
6. At [12] the Decision set out portions of s 5(1) of the 1973 Act. Section 5(1) contains a number of definitions and the relevant ones (portions of which are set out in the Decision) are as follows:

"common property" means so much of a parcel as from time to time is not comprised in any lot.

"lot" means one or more cubic spaces forming part of the parcel to which a strata scheme relates, the base of each such cubic space being designated as one lot or part of one lot on the floor plan forming part of the strata plan, a strata plan of subdivision or a strata plan of consolidation to which that strata scheme relates, being in each case cubic space the base of whose vertical boundaries is as delineated on a sheet of that floor plan and which has horizontal boundaries as ascertained under subsection (2), but does not include any structural cubic space unless that structural cubic space has boundaries described as prescribed and is described in that floor plan as part of a lot.

"floor plan" means a plan, consisting of one or more sheets, which:

(a) defines by lines (in paragraph (c) of this definition referred to as

"base lines" ) the base of each vertical boundary of every cubic space forming the whole of a proposed lot, or the whole of any part of a proposed lot, to which the plan relates,

(b) shows:

(i) the floor area of any such cubic space, and

(ii) where any such cubic space forms part only of a proposed lot, the aggregate of the floor areas of every cubic space that forms part of the proposed lot, and

(c) where proposed lots or parts thereof to which the plan relates are superimposed on other proposed lots or parts thereof to which the plan relates:

(i) shows the base lines in respect of the proposed lots or parts thereof that are so superimposed separately from those in respect of the other proposed lots or parts thereof upon which they are superimposed, and

(ii) specifies, by reference to floors or levels, the order in which that superimposition occurs.

1. At [13] the Decision set out the provisions of s 5(2) of the 1973 Act, the terms of which are:

(2) The boundaries of any cubic space referred to in paragraph (a) of the definition of "floor plan" in subsection (1):

(i) are, in the case of a vertical boundary, where the base of any wall corresponds substantially with any line referred to in paragraph (a) of that definition--the inner surface of that wall, and

(ii) are, in the case of a horizontal boundary, where any floor or ceiling joins a vertical boundary of that cubic space--the upper surface of that floor and the under surface of that ceiling, or

(b) are such boundaries as are described on a sheet of the floor plan relating to that cubic space (those boundaries being described in the prescribed manner by reference to a wall, floor or ceiling in a building to which that plan relates or to structural cubic space within that building).

1. At [14] the Tribunal set out relevant parts of the regulation concerning floor plans applicable at the time of registration of the Strata Plan, namely reg 7(1) of the Strata Schemes (Freehold Development) Regulation 2012 (NSW). It provides:

7 Floor plans

(1) A floor plan must be in the approved form known as "Strata Plan Form 2", on a separate sheet from the location plan, and show the following:

(a) by continuous lines, the boundaries of lots or whole separate parts of lots, so that boundaries defined by walls or other structural features are shown by a consistent thick line and boundaries defined by lines only are shown by a consistent thin line,

(b) if the boundary of a lot is defined by reference to the surface of a structural feature, other than the surface of a floor or ceiling, linear connections to that surface and such linear dimensions of that boundary as the Registrar-General may require,

(c) if the boundary of a lot is defined by reference to the surface of a floor or ceiling, such vertical connections and notations as are necessary to define that boundary,

(d) notations sufficient to ensure that each cubic space forming the whole of a lot or a whole separate part of a lot is fully defined (provided that if it is intended that a lot boundary is to be defined in accordance with the formula set out in section 5 (2) (a) of the Act, no notation need be made for the purpose of defining that boundary).

1. At [15] of the Decision the Tribunal stated that the effect of the above provisions is that if the boundaries of a lot are described on a sheet of the floor plan in the manner prescribed by reg 7(1), those are the boundaries pursuant to s 5(2))(b). However, if the boundaries are not so described, the boundaries are defined pursuant to s 5(2)(a).
2. At [16] the Tribunal stated that there was no dispute that as of 2 August 2013 (the date of registration of the Strata Plan) the timber decks had been installed and were fixed to the concrete slabs of the balconies and terraces of all of the apartments in the building.
3. At [17] the Tribunal recorded that the Owners Corporation (now the Appellant) conceded that if s 5(2)(a) is applicable, such that the "upper surface of the floor" fixes the lower horizontal boundary of each of the lots of the lot owners, the boundary is the upper surface of the timber decks, meaning the timber decks are common property.
4. However, it is recorded at [17] and [18] of the Decision that the Appellant submitted that the lower horizontal boundaries of the lots are relevantly "described" on sheets of the floor plan such that s 5(2)(b) is applicable.
5. The decision then turned to recording the notations on the relevant floor plans. Two lots in question are on level 1 and the relevant sheet plan is sheet plan 4. The terraces comprising a portion of each lot are marked on the sheet plan with the letter "T". The legend for the sheet contains the following notation:

"T" Denotes Terrace Having A Concrete Surface And Is Limited In Height To 3 Metres, Except Where Covered By A Level 2 Balcony .

1. The level 4 lots are shown on sheet 7 of the floor plan. Both comprise balconies and the balconies are marked on the sheet with the letter "B". The legend for the sheet contains the following notation:

"B" denotes balcony having a concrete surface and limited in height to 3 metres, except where covered.

1. The Decision records that it is "inherent" in the Appellant's submission that the words "having a concrete surface" describes the lower horizontal boundary. The Tribunal member stated that he did not agree. At [23] the Tribunal stated that in its view the notations do not purport to define the lower horizontal boundaries of the lot. The Tribunal added that the language does not indicate that the concrete surface is to represent the boundary. The Tribunal referred to a statement in the Court of Appeal judgment in The Owners Strata Plan no 35402 v Seiwa Australia Pty Ltd [2007] NSWCA 272 where, at [29] Tobias JA (with whom Giles and Basten JJA agreed) observed in relation to a description under s 5(2)(b):

"Provided the description adopted makes it plain that it is in fact, purporting to fully define the that particular boundary, it will be effective according to its terms."

1. The Tribunal found that the description "having a concrete surface" does not make plain that it is purporting to define the lower horizontal boundary. Rather, the words simply describe the nature of the element of the building. The Tribunal said that this "reading" is consistent with other notations (which the Tribunal identified) which were descriptive of building elements and not boundaries.
2. At [26] the Tribunal stated that a further reason for the view that the description does not satisfy the requirements of s 5(2)(b) is that the descriptions are not in the prescribed manner. The Tribunal stated that the words "having a concrete surface" do not amount to notations necessary to define the boundary as required by reg 7(1)(c). Nor do the notations have the effect of ensuring the boundary is "fully defined" as required by reg 7(1)(d).
3. At [29] the Tribunal found that the proper focus of the relevant statutory provisions is whether the sheets of the floor plan described the particular boundaries. The Tribunal considered that they did not. At [30] the Tribunal concluded that the boundaries of the lots are defined pursuant to s 5(2)(a) such that the timber decks are common property.
4. The Tribunal then turned its attention to by-law 26. By-law 26, when it was registered was in the following terms:

26.1. The Owner of a Lot shall maintain the timber decking on the balconies to keep the timber decking in good order.

26.2. The Owners Corporation shall have the timber decking on balconies re‑oiled annually to keep the timber decking aesthetically pleasing and shall be responsible for major maintenance and replacement.

1. At [32] the Tribunal found that the terms of by-law 26 are consistent with the timber decks being common property.
2. At [33] the Tribunal stated that because the timber decks are found to be common property the issues relating to by-law 26 do not arise for consideration.
3. However, from [34] the Tribunal stated that consideration has been given to determining the issues concerning by-law 26 on the basis that, contrary to the Tribunal's finding, the timber decks are lot property. The Tribunal referred to the principle that a primary decision-maker generally should determine the issues raised by the parties, including those that do not require determination in light of other findings: citing PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312 at [15]; Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd [2024] NSWCA 174 at [131]. However, at [35] the Tribunal stated that "full consideration of each of the issues is not justified" and then set out the reasons for that view. Three reasons were given.
4. The first reason was "None of the three issues concerning by-law 26 depends upon findings of fact. The claim that it is void for uncertainty is resolved by its terms. The claim of its repeal or variation by special by-law 11 is a question of construction. So far as concerns the claim that it is harsh, unconscionable or oppressive, Cooper v The Owners - Strata Plan no 58068 [2020] NSWCA 250 establishes that it does not turn upon factual findings as to the particular circumstances".
5. The second reason was that "any appellate decision-maker is in as good a position to determine the issues if they are to become live. That being so, there is no risk of a further trial in connection with determination of those issues."
6. Thirdly, the Tribunal stated that although the Tribunal has not embarked on a full and complete consideration, in deference to the parties submissions, the Tribunal decided to express its views on the issues together with brief reasons so as to inform the parties of the findings the Tribunal would have made and the core reasons for those findings.
7. At [39] the Tribunal stated that it considered that s 232(1) of the Strata Act does not authorise the Tribunal to declare that a by-law is void for uncertainty. The Tribunal set out authorities in support of that conclusion. The Tribunal added that where a by-law is sought to be enforced for failure to comply with the duty purportedly created by it, it is open to the Tribunal to make a finding that there has been no failure to comply on the ground that the by-law is not effective to create the duty. The Tribunal went on to conclude at [43], that the by-law was not void for uncertainty.
8. From [44] the Tribunal considered special by-law 11. The Tribunal found that that by-law was invalid. Therefore, it did not operate to repeal or vary by-law 26.
9. The Tribunal referred to the submission of the Appellant to the effect that Part 1, cl (b) of special by-law 11 which states that the intent of the by-law is to absolve the Owners Corporation of maintenance responsibilities of "any fixture or fitting contained within the lot, whether specified in this by-law or not." The Tribunal held at [48] that special by-law 11 is a rule of general application and, in contrast, by-law 26 deals specifically with timber decking on balconies. The Tribunal found that the specific provisions of by-law 26 should be preferred over the general provisions of special by-law 11. The Appellants submissions on appeal do not seek to rely on special by-law 11 and, accordingly, we have assumed that the Tribunal's conclusions are not disputed.
10. The Tribunal then considered the argument that by-law 26 was harsh, unconscionable or oppressive. The Tribunal referred to s 150 of the Strata Act which authorises the Tribunal to make an order declaring a by-law to be invalid if the Tribunal considers that the by-law is harsh, unconscionable or oppressive. The Tribunal held that the terms of s 150 require the applicant for such an order to be "a person entitled to vote on the motion to make a by-law or the lessor of a leasehold strata scheme". The Tribunal held at [50] that the Appellant was not such a person.
11. The Tribunal then turned to the question of whether the Owners Corporation could seek a declaration to the same effect as contemplated by s 150 under s 232(1). The Tribunal held that such an interpretation would render otiose the express, specific power in s 150(1) and at [52] the Tribunal found that the Appellant lacked standing to seek an order under s 150(1). At [53] the Tribunal stated that it did not "propose to state my view on whether, on the assumption the timber decks are lot property, by-law 26 is harsh, unconscionable or oppressive".
12. Next, the Tribunal turned its attention to the submissions made by one lot owner based on a settlement agreement. The settlement agreement was made on 20 May 2024 between the lot owner, Annette Barnett and the Owners Corporation represented by Mr Kater, an employee of the strata managing agent (Netstrata).
13. At [61] the Tribunal found that Netstrata had authority to enter into the settlement agreement on behalf of the Owners Corporation and further that the settlement agreement was subsequently ratified by the strata committee.
14. Thereafter the Decision dealt with the facts leading to the creation of special by-law 11. It is not necessary to set out the facts as found or the Tribunal's reasoning other than to note that at [81] the Tribunal found that special by-law 11 was inconsistent with the Strata Act and therefore has no force and effect, relying, upon s 136(2) of the Strata Act.
15. From [86] the Tribunal noted the "common ground" that based on the report of Mr Mark Kavanagh, "certain timber decks of the apartments of the four applicant lot owners have fallen into disrepair and require replacement". The Tribunal found that the Owners Corporation had breached s 106(1) and (2) of the Strata Act.
16. The Tribunal went on to consider the nature of work orders that should be imposed upon the Appellant. The Tribunal noted that the Appellant submitted that work orders should not be made because it should be permitted to decide for itself the particular form of repair [92]. The Tribunal found at [93] that such an approach is "inconsistent with the principles applicable to compliance with the duties under s 106, which were summarised in Campbell v The Owners Strata Plan no 88807 [2024] NSWCATCD 50 at [13]- [26].
17. At [95] the Tribunal stated that it was satisfied that the work identified as Option B in section 8.1 of the Scope of Works and the work identified in section 8.2 of the Scope of Works (prepared by Mr Kavanagh) is reasonably necessary to ensure compliance with the duties under s 106. An order to that effect was made.
18. The Tribunal considered whether a costs order should be made and found that there were special circumstances to warrant an award of costs in favour of the lot owners. An order for the Appellant to pay the Respondents' costs in the proceedings at first instance was included in the orders made.

1. The Appellant's Notice of Appeal was lodged on 4 August 2025 and contains the following grounds of appeal.
2. The Notice of Appeal states that the Appellant appeals orders 1 and 4. Order 1 concerns the order requiring the Appellant to undertake the work identified in the Scope of Works prepared by Mr Kavanagh. Order 4 is the order for the Appellant to pay the Respondents' costs at first instance. Order 2 is not the subject of appeal. It concerned the declaration that special by-law 11 is declared to be invalid. In addition, the Appellant did not appeal order 3 which required the Appellant to do all things necessary to ensure registration of order 2 under s 246 of the Strata Act. The grounds of appeal are set out below.
3. Ground 1: the Tribunal erred in law in finding that the strata plan did not contain sufficient notations defining the horizontal boundaries of the balconies and terraces in the strata plan for the purposes of s 5(2)(b), and erred in finding that s 5(2)(a), and not s 5(2)(b), was applicable to the strata plan and further erred in consequence of the above in finding that the timber decking was common property.
4. Ground 2: the Tribunal erred in law in finding that the existence of by-law 26 supported its findings (impugned by ground 1 above) with respect to the application of s 5(2)(a).
5. Ground 3,: the Tribunal erred in law in failing to find that by-law 26 was void for uncertainty and therefore ought not to be enforced.
6. Ground 4: the Tribunal erred in law in finding that the Tribunal did not have jurisdiction, on the application of the Appellant, pursuant to s 232(1) of the Strata Act to determine that by-law 26 was invalid on the basis that it was harsh, unconscionable or oppressive.
7. Ground 5: The Tribunal erred in law in finding that the Appellant did not have standing under s 232(1) of the Strata Act for the purposes of its application to have by-law 26 declared harsh, unconscionable or oppressive, on the basis that s 141 of the Strata Act was a pathway available to the Appellant for the repeal of that by-law in a manner not available to individual lot owners.
8. Grounds 6: the Tribunal erred in law in finding that the purported settlement agreement between the First Respondent and the Appellant dated 20 May 2024 was within the power of the Appellant to enter into or, in the alternative, as a matter of construction was binding and effective in the absence of a general meeting resolution or, in the alternative, as a matter of construction required works to be commenced by 3 August 2024. In its submissions the Appellant did not press the first part of this ground ( ie that the Tribunal erred in finding that the agreement was within power).
9. Ground 7: the Tribunal erred in law in failing to consider the Appellant's submission that the settlement agreement was conditional on the passing of resolutions at a general meeting.
10. Ground 8: in the alternative to grounds 1 to 7 above, the Tribunal erred in law by exercising its discretion to make a work order for works to be completed pursuant to ss 106 and 232 of the Strata Act as defined by the Integrated Building and Engineering Consultancy Report and, failing to exercise the said discretion to instead require the Appellant to hold a general meeting in order to consider and determine the appropriate rectification methodology in light of the Tribunal's conclusions with respect to the scope of the Owners Corporation's duties under s 106 and the extent of the common property as defined by the Strata Plan.
11. Ground 9: the Tribunal erred in law in finding that there existed special circumstances warranting an award for costs against the Appellant.
12. Ground 10: the Tribunal erred in law in failing to accord the Appellant procedural fairness in respect of the issue of costs by failing to invite submissions on that issue prior to making a costs order.
13. Ground 11: the Tribunal erred in law in determining the issue of costs on the basis of issues which formed no part of its actual reasoning disposing of the application below, in that the grounds relied upon all related to matters the Tribunal had found it was unnecessary to determine and which it did not fully determine.
14. Ground 12: to the extent that the grounds are considered to involve mixed questions of law and fact, the Appellant seeks leave to appeal from the Decision on those grounds with the reasons for the grant of leave to be dealt with below.
15. The Appellant seeks the following orders in substitution for the orders made by the Tribunal below:

(1) The application number 2025/00006667 be dismissed. This application number appears to be an error. We take it that the Appellant seeks to have the Respondents' application (2024/00336052 ) dismissed.

(2) The Respondents to pay the Appellant's costs.

1. The Notice of Appeal summarised the basis for seeking leave to appeal (where leave is required). This included that the decision was not fair and equitable because the Appellant had obtained quotations in 2023 for rectification of works to the timber decking on the assumption that it was obliged to do so pursuant to by-law 26 and on the basis that the timber decking was common property. The Appellant refused to undertake those works, because it adopted the position that the timber decking was not common property and/or because by-law 26 ought not be enforced. The Tribunal's decision to make a work order was unfair and inequitable because there was no evidence that the Appellant would refuse to comply with its obligations under s 106 of the Strata Act upon determination of the issues concerning whether the timber decking is common property. It was appropriate for the Appellant to determine the appropriate rectification methodology including by obtaining up-to-date quotations and investigating the possibility of alternative cheaper and/or longer lasting rectification options.
2. The grounds of appeal include the contention that the Tribunal did not hear the parties on the question of costs, that the Tribunal based its finding of special circumstances on obiter comments made by it on issues which it determined it was unnecessary to decide and the Tribunal could not and should not have awarded the Respondents' costs, and doing so was unfair and inequitable.
3. The Respondents lodged a Reply to Appeal opposing each of the grounds of appeal. The details of the Respondents' position will be explained later.

1. Grounds 1 and 2: the submissions of the Appellant state that the Tribunal erred in its construction of the contents of the Strata Plan. Questions of construction are questions of law: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [46]-[52]. This has been repeatedly recognised by courts and by the Appeal Panel of the Tribunal, for example see Flight Centre Travel Group Ltd t/a Aunt Betty v Goel [2021] NSWCATAP 44 at [10].
2. Section 5(1) of the 1973 Act defines lot, the substance of which is to the effect that a lot is the "cubic space the base of whose vertical boundaries is as delineated on a sheet of that floor plan and which has a horizontal boundaries as ascertained under subsection (2)".
3. Section 5(2) defines the boundaries of any cubic space, which are "in the case of a horizontal boundary, where any floor or ceiling joins a vertical boundary of that cubic space - the upper surface of that floor and the under surface of that ceiling", or such boundaries are "as are described on a sheet of the floor plan relating to that cubic space (those boundaries being described in the prescribed manner by reference to a wall, floor or ceiling in a building to which that plan relates or to structural cubic space within that building)".
4. The Appellant's submissions state that it was not in issue between the parties that where s 5(2)(a)(ii) applied to define the lower horizontal boundary of a cubic space, that boundary was fixed as at the date of registration of the Strata Plan as defined by reference to the upper surface of the floor as then installed. The parties agreed that the timber decking was installed as at the date of registration of the plan.
5. However, s 5(2)(a) is expressly made subject to subsection (b). Subsection (b) requires that boundaries be described "in the prescribed manner" and as at the date of registration of the Strata Plan that involved referring to reg 7 of the Strata Schemes (Freehold Development) Regulation 2012 (NSW). The full text of reg 7 has been set out earlier in this decision.
6. The submissions state that the Tribunal erred in stating "the search for intention [of the drafters of the Strata Plan] distracts attention from the proper focus of the relevant statutory provisions of whether sheets of the floorplan relevantly described the particular boundaries". The submissions state that this was an error in "a process of construction, it is well established that objective intention is the touchstone". We interpose here to say that in our view, it is clear that the Tribunal was engaged in the process of considering the objective intention of the notations on the Strata Plan. By stating that the search for intention distracts attention from the proper focus it seems to us that the Tribunal is stating that one should focus on what is contained on the sheets of the floorplan as opposed to attempting to glean the intention of those who drafted the notations on the floor plan.
7. The Appellant's submissions go on to refer to the Tribunal's reliance upon the judgment of the Court of Appeal in Seiwa. That case concerned a strata plan with the following annotation:

"DENOTES TERRACE LIMITED IN HEIGHT TO 2.5 ABOVE THE UPPER SURFACE OF THE CONCRETE FLOOR THEREOF EXCEPT WHERE COVERED."

1. The Court of Appeal in Seiwa held that the above annotation only described the upper horizontal boundary with the reference to the concrete floor being used to define where the upper boundary ended, but not as a description of the lower boundary (which, absent being defined, was by virtue of s 5(2)(a)(ii) of the 1973 Act held to be the tiled surface.
2. The Appellant's submissions state that the notations in the strata plan in Seiwa are different to those applicable to this appeal. That is because:

(1) In Seiwa the wording used only referred to a limit in height. The concrete floor was used to define that limit in height.

(2) Conversely, in the present case, each of the notations refers to a concrete surface, followed by the word "AND" before "LIMITED IN HEIGHT". That is the annotation expressly defines the cubic space both by the concrete surface as the lower bound "AND" the upper limitation in height.

1. The Appellant submitted that the Tribunal ought not to have relied on Seiwa and ought instead to have found that the Strata Plan contained sufficient notations so as to engage s 5(2)(b) of the 1973 Act. That is because:

(1) The Tribunal below at [24]-[25] considered that the description "having a concrete surface" did not make plain that the Strata Plan was purporting to define the lower horizontal boundary and instead was consistent with other notations in the floor plan that could only be described as building elements and not boundaries (eg. the concrete roof being described as "non-trafficable").

(2) The Tribunal's approach was overly semantic; its conclusion flowed from the absence of the verb "to be".

(3) The Tribunal's construction ignores the fact that the reference to the concrete floor is itself already used to define a boundary, namely the upper horizontal boundary (ie. 3 metres above the concrete). A limit of height to an open space such as a balcony can only be interpreted as a horizontal boundary. Further, a conclusion that the notations were merely general descriptions would give them no actual work to do, and such construction is to be eschewed: Cartwright v MacCormack [1963] 1 WLR 18 at 21.

(4) Once it is accepted that the concrete surface mentioned in annotations T and B is being used to describe boundaries, it makes little sense to treat the words "concrete surface" in isolation before the word "AND" as being an offhand reference to the nature of the building elements.

(5) The only way to read the annotation as defining the upper, but not lower boundary is to ignore the use of the word "AND" for the purposes of the lower boundary, but to have regard to it and its connection to the concrete surface for the purpose of defining the upper boundary. Such a construction is arbitrary.

(6) Thus, unlike in Seiwa, the annotations in the Strata Plan do not describe only one boundary, rather they describe both the upper and lower boundaries at the same time by reference to the lower and upper limits of the defined cubic space, the lower starting point of which is the concrete surface and the upper ending point is 3 metres from that starting point.

1. The Appellant's submissions make reference to the fact that the Tribunal found that the descriptions in the Strata Plan were not in the prescribed manner, not having notations necessary to define the boundary per reg 7(1)(c) nor having the effect of ensuring the boundary is "fully defined" per reg 7(1)(d). The submissions state that these concerns fall away once the annotations are properly construed as outlined above - no further definition is "necessary" and the whole of the cubic space is "fully defined" by each of the concrete surface, the balcony walls, and the horizontal space ending 3 metres above the surface.
2. The Appellant's submissions also challenge the Tribunal's finding that by-law 26 supported its conclusion that s 5(2)(a) of 1973 Act applied to define the lower horizontal boundary rather than s 5(2)(b). The Tribunal considered that the by‑law was "entirely consistent" with the timber decks being common property. The Appellant's submissions state that the by-law was extrinsic to the Strata Plan and ought only to have been used as an aid in interpretation to the extent that the Strata Plan was, itself, ambiguous: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd. However, it was not.
3. The submissions state that even if there was ambiguity, the by-law was not "entirely consistent" with the timber surface being common property. At best, it was neutral and consistent with the decking being either lot or common property, given it placed obligations on both a lot owner and the owners corporation at the same time.
4. The submissions state that the by-laws refer to timber decking and were lodged at the same time as the Strata Plan referring to a concrete surface. That, according to the submission, rather serves to highlight the fact that there was no need for the Strata Plan to refer to any concrete surface as a merely descriptive feature and that if that were intended, it would be inaccurate. In that context the reference to concrete surfaces was far more likely to be intended as a boundary.
5. We now turn to ground 3. This ground is to the effect that the Tribunal should have found that by-law 26 was void for uncertainty. The submissions acknowledge that this issue falls for determination if the Appellant succeeds in the argument that the timber decking is lot property as per grounds 1 and 2 as by-law 26 is an alternative basis upon which the Appellant is said to be liable to effect repairs.
6. The Appellant submits that ground 3 raises a question of law and leave is not required. This is because the question of whether by-law 26 is void for uncertainty is resolved by construction of its terms.
7. The Appellant's submission states that by-law 26 is internally inconsistent and fundamentally defective. On the one hand, the by-law imposes an obligation on a lot owner to maintain the timber decking and to keep it in good order. On the other hand, the by-law requires "major" maintenance and replacement to be carried out by the owners corporation. The Appellant submits that that provision is directly contradictory to the obligation upon the lot owner. The submissions state that the obligations contained in by-laws 26.1 and 26.2 cannot be reconciled. Further, there is no benchmark upon which the Tribunal can assess whether maintenance is "major" or not, such that by-law 26.2 is engaged. The term "major" is devoid of definition and context. Accordingly, by‑law 26, being void for uncertainty, should be severed. A declaration to this effect ought to have been made as occurred in Lewis v The Owners of Strata Plan No 32924 [2025] NSWCATAP 72.
8. Ground 4: the submission states that the Appellant contends that the Tribunal erred in finding that it had no jurisdiction to determine under s 232(1) of the Strata Act that by-law 26 was invalid on the basis that it was harsh, unconscionable or oppressive. That section empowers the Tribunal to settle a complaint or dispute concerning various subject matters, including those about the operation, administration or management of the strata scheme, evidently empowering the Tribunal to determine disputes concerning the Appellant's compliance with its duties under s 106.
9. In support of the above submission, the Appellant relied upon the judgment of the Court of Appeal in Vickery v The Owners - Strata Plan no 80412 (2020) 103 NSWLR 252. The court held that s 232 conferred jurisdiction and power upon the Tribunal to hear and determine a claim for damages under s 106(5) of the Strata Act. The effect of the reasoning in the judgment is that it is s 232(1) itself, which gives the Tribunal the power to make an order for damages based upon the cause of action contained in s 106(5). The Appellant's submissions state that if s 232(1) permits the award of damages to settle a complaint it makes little sense to exclude declaratory relief from the broad grant of powers given by s 232(1).
10. The submissions refer to the reliance by the Tribunal in its Decision upon the judgment in EB 9 and 10 Pty Ltd v The Owners SP 934 [2018] NSWSC 464 for the proposition that the Tribunal lacks power to make declarations. The submissions state that that judgment is inconsistent with the judgment in Vickery. The submissions refer, in support of the proposition that the Tribunal does have power to make a declaration, to the Appeal Panel decision in Lewis v The Owners - Strata Plan no 32924 [2025] NSWCATAP 72.
11. At [51] of the Decision the Tribunal considered that s 232(1) could not be construed to render otiose the specific power in s 150(1) of the Strata Act (allowing the Tribunal to declare a by-law invalid). The submissions state that the Tribunal's reasoning is not consistent with Vickery where the Court of Appeal held that the grant of power in s 232(1) is not to be read down by reference to other provisions of the Strata Act: see [26] to [38] of the judgment per Basten JA. His Honour's views were supported by White JA at [167] and by Leeming JA at [119] to [120].
12. In conclusion with respect to this ground, the Appellant submitted that by-law 26 ought to have been found to be harsh, unconscionable or oppressive and a declaration made to that effect.
13. Ground 5 was not pressed.
14. Grounds 6 and 7: ground 6 concerns the decision of the Tribunal at [66] of the Decision that a settlement agreement was formed between the Appellant and the First Respondent on 20 May 2024. The agreement expressly provided that its terms were dependent upon resolutions being passed at a general meeting. At [58] of the Decision the Tribunal indicated that it would have rejected an argument that the agreement was conditional on the passing of resolutions at a general meeting and held that the Appellant needed to ensure work commenced, as agreed, by 3 August 2024. The Appellant submitted that that construction of the settlement agreement gave no work for clause 1 (ie. the clause which stated that the commencement date is dependent on resolutions at a general meeting) and such construction is to be eschewed: Cartwright v McCormack's; AFC Holdings Pty Ltd v Shiprock Holdings Pty Ltd [2010] NSWSC 985.
15. The Appellant's submissions state that the proper construction of clause 2 of the settlement agreement is that the Appellant agreed to progress a tender option such that work could commence on about 3 August 2024 meaning that the Appellant agreed to take such steps to make the commencement of work a possibility including by agreeing to submit the agreement to a general meeting for lot owners' approval. Such an interpretation results in clauses 1 and 2 of the agreement working harmoniously and is consistent with the existence of ss 79 and 81 of the Strata Act, which require lot owners' approval for money to be raised for the carrying out of the works.
16. The submissions state that the Tribunal erred in concluding that the settlement agreement required work to be commenced regardless of whether or not it had been approved by the Appellant in general meeting.
17. Ground 7 is advanced on the basis that the Tribunal appears to have treated the issue of the settlement agreement as either hypothetical or not in contest. In fact it was the primary independent argument put by the Appellant on the settlement agreement issue. It ought to have been properly considered and determined.
18. Ground 8: this ground is put as an alternative to grounds 1 to 7, and the Appellant submits that the Tribunal erred in the exercise of the discretion to make a particular work order.
19. In exercising its discretion the Tribunal failed to take into account the fact that the Appellant had adopted the position, open on a fair reading of the strata plan, that the decking was lot property, and that this was why no work had been done. That the Tribunal took a different view is not to the point. It was not relevant to the Tribunal's assessment as recorded at [94] of the Decision that the Appellant had known of damage to the timber decking since November 2023, because that added nothing to the assessment of whether that decking was lot or common property in the first place.
20. The submissions state that the above matters (failing to take into account a relevant consideration and taking into account an irrelevant consideration) give rise to an error of law of the kind discussed in House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ). Alternatively, a House v the King error is demonstrated on the basis that the decision was manifestly unreasonable or plainly unjust.
21. Alternatively, the Appellant seeks leave to appeal on this ground on the basis that the Decision to make a work order was not fair or equitable. It was unfair and inequitable in the circumstances where there was no evidence that the Appellant would refuse to comply with its obligations under s 106, once those obligations were clarified.
22. This submissions state that it will rarely be the case that there is one, and only one, appropriate way to rectify building defects. By making an order in terms of one contractor's report, the Tribunal prevented the Appellant from deciding a repair method in the ordinary democratic way. This was of particular relevance, given that the Decision was given in mid-2025 and the report relied upon was issued, in draft, some years ago.
23. Grounds 9 to 11: by these grounds the Appellant seeks to set aside the costs orders made by the Tribunal. The submissions state that the Tribunal erred in finding that there existed "special circumstances" warranting an order for costs against the Appellant. At [102] of the Decision, the Tribunal described the special circumstances that operated in this case, namely that the claims by the Appellant in respect of by-law 26 were misconceived and that the orders sought were not authorised or could not be sought by the Appellant. The submissions state that the fact that the Appellant may have been wrong in the submissions of law it advanced does not necessarily constitute special circumstances. Similarly, the Tribunal's finding that the arguments in respect of the settlement agreement were contrary to established authority, are infected with the same problem, as is the finding that the Appellant's arguments about special by-law 11 were "ill considered".
24. At [102] the Tribunal stated that there was a real question as to the appropriateness of the Appellant to have made its claims with respect to by-law 26 "in the face of s 141". The Appellant's submissions state that the Tribunal decided not to pursue the issue further than as described in 102, and having made such a decision the Tribunal should not have used it as the basis of a finding of special circumstances. Those findings were based on obiter comments made on issues that the Tribunal determined were unnecessary to decide. The "special circumstances" relied upon were, according to the Appellant's submissions, irrelevant considerations such that a House v The King error is established or, alternatively, it is demonstrated that the Decision was manifestly unreasonable or plainly unjust.
25. The submissions state that, to the extent leave is required to appeal on this ground, leave should be granted as the Decision was not fair and equitable for the following reasons:

(1) The parties were not heard on the question of costs which was of particular significance given that the Tribunal presumed a motivation for some of the Appellant's arguments in the last sentence of the Decision at [102] without giving the Appellant an opportunity to respond.

(2) The findings of special circumstances based on obiter comments were made on issues the Tribunal had decided were unnecessary to be determined and therefore there was an absence of a full and complete consideration of the issue. The submissions state that it is difficult to reconcile the Tribunal's finding of special circumstances warranting an order for costs with its finding that these matters were unnecessary to decide or could be dealt with as a matter of submission on legal grounds alone.

1. Ground 10: by this ground the Appellant submits that the Tribunal erred in failing to accord the Appellant procedural fairness in failing to invite submissions on the issue of costs prior to the making of a costs order. The Appellant was not on notice that the Tribunal would proceed to order costs without first taking submissions. The Appellant did not make any submissions on costs and was not invited to do so. The Appellant was thus denied the opportunity to be heard.
2. Ground 11: the Appellant submits that the Tribunal erred in law in determining the issue of costs on the basis of issues which formed no part of its actual reasoning in disposing of the application below in that the circumstances relied upon all related to matters the Tribunal had found it was unnecessary to determine and/or which it did not fully determine. The submissions state that, to the extent necessary, the Appellant seeks leave to advance this ground for reasons described in the Notice of Appeal.
3. The submissions state that it was an error for the Tribunal to make a finding of special circumstances and award costs on the basis of issues it considered it had not properly or fully determined and which formed no part of the ratio decidendi of the Decision. The true position was that the only operative reason for a costs order was, as recorded at [103] of the Decision that the Respondents were successful. The outcome on costs was therefore contrary to the express terms of s 60(1) of the Civil and Administrative Act 2010 (NSW) (NCAT Act).
4. In oral submissions at the hearing of the appeal counsel for the Appellant also submitted that the cost decision did not consider a Calderbank offer that had been made and that the question of costs should be the subject of the remittal or, preferably, should be determined by the Appeal Panel.

1. Ground 1: the Respondents submit that the Tribunal did not err in its reasoning and conclusion that the language in the notations on the sheets of the strata floor plan do not indicate that the concrete surface is to represent the boundary of the relevant lots. The Respondents' submissions state that the judgment of the High Court in Mount Bruce Mining states that in determining the meaning of the terms of the commercial contract it is necessary to ask what a reasonable businessperson would have understood those terms to mean. At [48] of that judgment, it was stated by French CJ, Nettle and Gordon JJ that ordinarily the process of construction (of the terms of a commercial contract) is possible by reference to the contract alone and that if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning. The Respondents' submissions state that it is not permissible to disregard the contractual language by reference to a presumed intention. In any event, the Tribunal was not construing a commercial contract. Here, the question was whether the strata plan described the boundaries within the meaning of s 5(2)(b) of the 1973 Act. The terms of that Act governed where the boundaries of the lots lay.
2. The Respondents' submissions go on to state that the Tribunal was not in error in relying upon the judgment of the Court of Appeal in Seiwa particularly the portion quoted to the effect that "provided the description adopted makes it plain that it is in fact purporting to fully define that particular boundary, it will be effective according to its terms."
3. The Respondents' submissions state that Seiwa was plainly relevant by analogy. Even the language of "above the upper surface of the concrete floor thereof" was, in Seiwa, insufficient to lead the Court of Appeal to the conclusion that the notation described the lower horizontal boundary. The language of "having a concrete surface" is even less capable of defining a boundary.
4. The Respondents' submissions state that the Tribunal made no finding as to whether the concrete surface was the point from which the upper boundary was measured. However, even if it was, that does not lead to the conclusion that the concrete surface constitutes the lower boundary: precisely those circumstances were considered in Seiwa and it was found that the lower horizontal boundary was not defined by the notation. The Respondents' submissions state that the Appellant's submission was wrong to suggest that the notations had no work to do if they were merely general descriptions. The notations identified building elements, as did numerous other notations on the strata plan. Where a limitation in height was identified, they also defined the upper boundary. The Respondents state that the Tribunal's construction is not arbitrary. The notations specify a dimension in relation to the upper boundary (limited in height to 3 m) but neither refers to a lower boundary nor specifies any dimension in relation to it.
5. The Respondents' submit that there is no relevant distinction to Seiwa. There is no reason to assume that there was any intention to define the entire cubic space through a notation. Whereas a notation is required to define the upper boundary of an open space (it being merely airspace), no notation is required to define a lower boundary, as the existence of a floor defines a lower boundary in accordance with s 5(2)(a).
6. The submissions of the Respondents state that the Tribunal was correct to find that the descriptions were not in the prescribed manner.
7. Ground 2: the Respondents submit that this ground is misconceived. The Appellant's submissions seek to challenge mere observations made by the Tribunal following the Tribunal's conclusion regarding the boundaries of the lots. Even if the Tribunal's observations involved an error, such an error would not impugn any order made by the Tribunal.
8. The Respondents submit that ground 2 raises no question of law. The Appellant appears to submit that the Tribunal utilised by-law 26 as an aid to construing the strata plan, but the Respondents submit there is no foundation in the Tribunal's reasons for that assertion. Even if the Tribunal had done so, there is nothing to suggest that it mistook any relevant principle, nor is the contention that there is no ambiguity in the strata plan seriously maintainable in the face of the Tribunal's reasons and the dispute between the parties in relation to the issue. In any event, the Appellant has not identified an error in the Tribunal's observations. The Tribunal's observations that its findings regarding the strata plan could not be said to give rise to unintended consequences, and the terms of by-law 26 were "entirely consistent with the timber decks being common property", plainly reflected the fact that under by-law 26, the Appellant was obliged to carry out "major maintenance and replacement" of the decks.
9. Ground 3: the Respondents' submissions state that unless the Appellant succeeds on ground 1, ground 3 is irrelevant as the appeal must fail in any event. That conclusion appears to be common ground.
10. The Respondents' submissions identify the authorities that set out the principles relevant to the construction of by-laws. In the Owners of Strata Plan no 3397 v Tate [2007] NSWCA 207 (Tate) McColl JA said that "exclusive use by-law should be interpreted objectively by what they would convey to a reasonable person" - at [71(5)]. This principle has been accepted as applying to by-laws generally: see for example Pollack v The Owners - Strata Plan no 2834 [2020] NSWSC 784 at [ 58]. In Pollack Simpson AJ stated at [57] that the rigours of statutory interpretation that attend the construction of statutes may (to the extent that it is necessary to do so in fairness and in order to give effect to the intention of the draftsperson) be somewhat relaxed given that they are generally not drafted by a person with the skill and expertise of Parliamentary draft persons.
11. The Respondents' submissions state that it is clear that by-law 26 is not void for uncertainty, nor is it unavoidably ambiguous or inconsistent with other by‑laws of the strata scheme. The meaning of paragraph 26.1 is to be determined in light of paragraph 26.2 of the by-law. The meanings of both paragraphs can clearly be accommodated to one another. The owners corporation's obligations extend to "major maintenance". By-law 26 must be understood as imposing the obligation of all maintenance other than regular cleaning and similarly minor upkeep on the owners corporation. The obligation extends to all major repairs and thus encompasses the subject matter of this appeal.
12. The Respondents' submissions state that some difficulty in determining the respective fields of operation of the subparagraphs of by-law 26 would be insufficient to render the by-law void. Impossibility of identifying meaning is distinct from mere difficulty: see Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429 at 436-437 per Barwick CJ.
13. The Respondents' submissions state that the Tribunal did not err in concluding that by-law 26 can be given meaning and is not unintelligible. Further, the Tribunal did not err in concluding that it had no power to give declaratory relief. To the extent that the Appellant seeks such relief, it must be refused.
14. Ground 4: the Respondents submit that the Tribunal correctly found that it had no jurisdiction to determine under s 232(1) of the Strata Act that by-law 26 was invalid on the basis that it was harsh, unconscionable or oppressive.
15. The Respondents submit that s 150 of the Strata Act is the only provision pursuant to which an order can be made declaring a by-law invalid on the basis that it is harsh, unconscionable, or oppressive. The section provides that an order can be made on the application of a person entitled to vote on the motion to make a by-law or the lessor of a leasehold strata scheme, and that that description does not include an owners corporation.
16. The Respondents' submissions state that s 232 of the Strata Act is not a source of power to make an order sought by the Appellant. That section empowers the Tribunal to make orders in circumstances where substantive rights and obligations exist. A cause of action that enlivens the Tribunal's power to make orders under s 232(1) may be found elsewhere in the Strata Act, in the strata schemes by-laws, in other statute law or in the general law: see Quo Warranto Pty Ltd v Goodman [2002] NSWCATAP 315 at [71] (Quo Warranto).
17. In this case, the Appellant lacks a cause of action, as it has none under s 150 by reason of its lack of standing, and it cannot rely upon s 232 as a source of a cause of action.
18. Grounds 6 and 7: the Respondents submit that the settlement agreement did not state that it was binding and effective in the absence of a general meeting resolution. Rather, it stated that the "commencement/start date is dependent on resolutions at a general meeting". Clause 2 of the settlement agreement creates an obligation to progress "a tender option" and ensure works commence on or about a particular date. Clause 1 makes clear that the specific start date is dependent on the passage of resolutions at a general meeting. The Tribunal's reasons at [58] involved no error. In short, the Respondents support the conclusion of the Tribunal that the settlement agreement was not conditional on the passing of resolutions at a general meeting. Additionally, the Respondents submit that the Appellant did not advance the construction of clause 2 now the subject of the Appellant's submissions, before the Tribunal below.
19. The Respondents submit that, contrary to ground 7, the Tribunal did not fail to consider the Appellant's submission that the settlement agreement was conditional on the passing of resolutions at a general meeting. The Tribunal made findings about that issue at [58] of the Decision. We interpose here to note that the Appellant's submissions dispute the Tribunal's finding that this submission was not pursued or clearly articulated. The Appellant's oral submissions during the hearing of the appeal made reference to portions of the transcript where, the Appellant's submit, such argument was put.
20. Ground 8: the Respondents submit that this ground does not raise any question of law and that therefore leave is required. The Respondents submit that the Appellant relies only on the "fair and equitable" ground for the grant of leave to appeal and that none of the usual criteria for the grant of leave have been satisfied. No issue of principle has been identified, there is no question of public importance and there is no reasonably clear injustice going beyond something that is merely arguable.
21. The Respondents submit that there is no requirement, before a work order is made, for it to be established that an owners corporation will otherwise not comply with its obligation under s 106 of the Strata Act. It was open to the Appellant to adduce up-to-date quotations and make submissions as to the appropriate rectification methodology but it did not do so.
22. The Respondents submit that the Appellant has not identified any error in the Tribunal's exercise of discretion which would warrant appellant intervention according to the principles stated in House v The King The Respondents submit that it was a relevant consideration that the Appellant had known of damage to the timber decking since November 2023 and had failed to repair it. The delay of the Appellant was highly relevant to whether the Tribunal should make a work order as opposed to leaving it to the Appellant to determine how and when it should rectify the decking.
23. The matters raised by the Appellant in its submissions are incapable of establishing an error within the scope of House v The King.
24. Grounds 9 and 11: the Respondents submit that grounds 9 and 11 raise no question of law, such that leave is required. The Appellant has not suffered a substantial miscarriage of justice or a reasonably clear injustice. The Respondents submit that the Tribunal's findings at [102] of the Decision that claims made by the Appellant were misconceived, contrary to established authority and ill-considered and that orders sought by it could not be made, were well capable of supporting a finding a special circumstances. They were plainly not irrelevant considerations within the meaning of House v The King.
25. In addition, the Respondents submit that there are additional reasons to reject the appeal against the costs order. The Respondents' submissions refer to the terms of a Calderbank offer which provided for the Appellant to carry out the same works as was ultimately ordered by the Tribunal and for the Respondents to pay $20,000 towards the costs of those works. It was unreasonable for the for the Appellant to have rejected that offer. The outcome of the proceedings was less favourable to the Appellant. Additionally, on 22 January 2025, the Respondents' solicitor wrote to the Appellant's solicitor explaining why the Appellant's cross-application was ill-conceived and that letter made clear that the Respondents would rely on it in support of an application for costs on the basis that there were special circumstances in relation to the Appellant's cross-claim. The Appellant persisted with the cross-application in the face of that letter and that conduct also warrants a finding of special circumstances. Accordingly, the costs order made by the Tribunal ought not to be disturbed.
26. Ground 10: the Respondents submit that there has been no denial of procedural fairness in relation to the Tribunal's decision on costs. The Respondents sought costs in their written submissions. The Appellant did not address the issue of costs either in written submissions or orally, nor did it seek a further opportunity to address costs after determination of the substantive issues. In the absence of such a request or any indication by the Tribunal that a further opportunity to address costs would be afforded, it cannot constitute a denial of procedural fairness for the Tribunal not to provide one.
27. The Respondents' submissions state that the Respondents had submitted that an order for costs should be made on the basis of special circumstances. The Tribunal was able to reach the requisite state of satisfaction as to the existence of special circumstances on the basis of having heard the case on the merits. The Tribunal had formed the view that the Appellant's claims were misconceived, contrary to established authority and ill considered. Nothing in s 60 of the NCAT Act and no rule of procedural fairness prevented the Tribunal from awarding costs where that state of satisfaction has been attained.
28. The Respondents' submissions state that if, contrary to the Respondents' primary submissions, the Appeal Panel concludes that there has been a denial of procedural fairness with respect to the Tribunal's costs order, the appropriate course would be to remit the issue of costs to the Tribunal. The Tribunal had the advantage of hearing the evidence, as well as submissions on all of the issues which were in dispute below. Not all of those issues are the subject of the appeal. Where the existence of special circumstances may turn on the weakness or misconceived nature of arguments advanced to the Tribunal, the Tribunal enjoys a significant advantage over the Appeal Panel in determining whether special circumstances exist.
29. Finally, the Respondents seek an order that the Appellant pay the costs of the appeal. In support, the Respondents submit that special circumstances exist by reason of the weakness of the grounds of appeal, especially grounds 2 to 8.
30. The Respondents' submissions also seek a "quarantining" order in respect of the costs of the appeal pursuant to s 232 of the Strata Act. Section 232 empowers the Tribunal to make such an order, which is of the same nature as an order which may be made by a court under s 90(2) of the Strata Act: The Owners - Strata Plan no 62713 v Liberant [2022] NSWCATAP 80 at [132]. The Respondents' combined share of the units entitlements of the strata scheme is 24%. In the absence of a quarantining order the Respondents would be required to contribute significantly to the payment of any costs awarded in their favour and would thus be deprived of a substantial part of the benefit of the order.
31. The Respondents also submit that they should have an opportunity to be heard on the question of costs after the determination of the substantive appeal in order that submissions may be made with the benefit of the Appeal Panel's reasons.

1. The Appellant submits in reply that the Respondents' submissions reveal that the only grounds that the Respondents maintain do not raise questions of law and therefore require leave are grounds 8, 9 and 11. The Appellant submits that leave should be granted to advance those three grounds for the reasons set forth in the Appellant's submissions in chief.
2. With respect to ground 3, the Appellant submits in reply that there is a dichotomy between what is said to be the lot owners' obligation compared with what is said to be the obligation of the owners corporation such that once it is understood what the obligation of the owners corporation is under by-law 26.2, it is difficult to understand what work is left for by-law 26.1 to do. The Appellant submits that this submission is further support for its contention that by-law 26 is void for uncertainty.
3. With respect to ground 4, the Appellant submits in reply that it accepts the rationale stated in the Appeal Panel decision in Quo Warranto. However, the Appellant submits that an obligation imposed by by-laws on the owners corporation to expend monies is an obligation of the kind referred to in Quo Warranto and further that s 150 of the Strata Act creates a cause of action to enable a by-law to be declared void in particular circumstances. The submissions state that the criteria contemplated by the reasoning in Quo Warranto and in Vickery have been satisfied in the circumstances of this case.
4. The Appellant submits that the Appeal Panel is bound to follow the reasoning of the Court of Appeal in Vickery in construing the provisions of the Strata Act.
5. In respect of ground 8, the Appellant submits in reply that the Respondents' contentions failed to take account of the possibility of renewal proceedings under cl 8, Pt 5, Sch 4 to the NCAT Act in the event of non-compliance with an initial order requiring compliance with s 106 of the Strata Act.
6. In respect of grounds 9 to 11 the Appellant submits in reply that the Calderbank offer did not propose a better outcome for the Respondents than what they in fact achieved below. The Respondents have 24% of the unit entitlements in the strata scheme and they will have to contribute far more than $20,000 to the replacement of the decking if the Tribunal's orders below are upheld. It is arguable that the terms of the offer, if accepted, would have prevented the Appellant from levying the Respondents to contribute to the decking works in accordance with their units entitlements. On that basis it was entirely reasonable for the Appellant to have refused to accept the offer.
7. Additionally, the Appellant's submissions in reply refer to an earlier offer (dated 12 November 2024) made by the Appellant to settle the proceedings. It is not necessary for the purposes of this appeal to go into further detail (as the Appellant's submissions in reply do) concerning this offer.

1. The essential issue in this appeal, encompassed by ground 1, concerns whether the Tribunal erred in determining the lower horizontal boundaries of the balconies and terraces the subject of the dispute between the parties. As the submissions state a similar issue arose in the Court of Appeal judgment in Seiwa. It is relevant and instructive to set out the aspects of the judgment of Tobias JA (with whom the other members of the court agreed).
2. In Seiwa there was an issue concerning an uncovered external terrace. Water had been seeping into the internal space of the unit from the terrace and it was determined that there were problems with the waterproof membrane that lay beneath the concrete slab and the tiled surface of the terrace. The dispute concerned whether the tiles and waterproof membrane were part of the lot or were common property. Seiwa (the lot owner) argued that the lower horizontal boundary of the lot had not been expressly defined anywhere in the floor plan of the strata scheme so that it was to be determined according to s 5(2)(a)(ii) of the 1973 Act. As the tiles had been laid prior to the registration of the strata plan, the lower horizontal boundary was the upper surface of the tile floor. The Owners Corporation conceded that that was the effect of s 5(2)(a)(ii) but argued that a notation on the plan which defined the upper boundary of the cubic space of the terrace as "2.5 Above The Upper Surface Of The Concrete Floor" by inference also described the lower horizontal boundary which therefore constituted a description on a sheet of the floor plan relating to the cubic space within the meaning of s 5(2)(b), thus overriding s 5(2)(a)(ii). The result, on the contention of the Owners Corporation, was that the lower horror horizontal boundary was the upper surface of the concrete slab and that the waterproof membrane and tiles form part of the lot and were not common property.
3. At first instance Brereton J found in favour of Seiwa. The Owners Corporation appealed and their appeal was dismissed with the Court of Appeal agreeing with the judgment and reasoning of Brereton J. His Honour had held that the effect of the annotation (which was set out at [64] of this decision) was to describe the upper boundary of part of the relevant cubic space, by reference to a floor. His Honour held that the annotation did not describe the lower boundary.
4. Tobias JA said at [25] that s 5(2)(a) sets out a statutory formula for the determination of both the vertical and horizontal boundaries of the cubic space being the whole of the lot except as provided in s 5(2)(b). The latter allows for the statutory formula to be departed from where either the vertical or horizontal boundaries of the relevant cubic space are relevantly "described" on a sheet of the floor plan relating to that cubic space.
5. His Honour said at [26] that the words in parentheses in s 5(2)(b) requires the boundaries to be described in the prescribed manner by reference to "a wall, floor or ceiling in a building to which" the floor plan relates. At [28], His Honour stated that the first limb (s 5(2)(a)(ii)) defines the relevant boundary by reference to the "upper surface" of the floor and s 5(2)(b) by reference only to "a ... floor in the relevant building. It may or may not describe that boundary by reference to the upper surface of that floor".
6. At [29], His Honour stated that where it is intended to define the lower horizontal boundary pursuant to s 5(2)(b) there is nothing to prevent it being described, for instance, as the upper surface of the concrete floor slab. His Honour then said: "Provided the description adopted makes it plain that it is in fact, purporting to fully define that particular boundary, it will be effective according to its terms".
7. At [30], His Honour agreed with Brereton J that the notation did not purport to define the lower horizontal boundary, although it clearly did with respect to the upper horizontal boundary.
8. At [31], His Honour stated that the requirement of s 5(2)(b) that the boundaries be described "in the prescribed manner" is addressed by cl 9(f) of the Regulations. We note that the current version of that regulation is reg 7 earlier referred to. Clause 9(f) requires that any notation be sufficient to ensure that each cubic space forming the whole of a lot or a whole separate part of a lot be "fully defined". Later at [37], His Honour stated that the notation did not purport to define the lower horizontal boundary of that space and that that boundary is to be determined in accordance with s 5(2)(a)(ii) namely as the upper surface of the floor of the terrace being the upper surface of the tiles.
9. The two relevant notations the subject of this appeal were set out at [15] and [16] of this decision. We do not regard the language of those two notations as materially different from the notations considered in the Seiwa case. Clearly, the notations define the upper boundary of the terrace or balcony by reference to a floor being in this case a concrete surface. We are further of the view that notations "T" and "B" do not define the lower boundary of the relevant terrace or balcony by reference to a wall, floor or ceiling. The reference to a "concrete surface" in the two notations does not purport to be the reference point for the lower boundary of each of the lots.
10. The Appellant seeks to place some significance on the use of the word "AND" in the two notations and draws attention the fact that the word "AND" is not included in the notation in the Seiwa case.
11. Although the wording of notations T and B are not identical with the notation in Seiwa, nevertheless, Seiwa offers guidance as to how the provisions of s 5 of the 1973 Act and the regulations should be construed. Regulation 7(1)(d) requires any notation to be sufficient to ensure that each cubic space forming the whole of the lot be "fully defined". Clearly notations T and B purport to define the upper boundary by reference to the concrete floor stating that the upper boundary is 3 metres above the concrete floor. There is no express statement defining the lower boundary. The most one can say is that the reference to the terraces or balconies "having a concrete surface" is possibly intended to implicitly define the lower boundary. On the other hand, these words can be construed as only being descriptive of the surface from which the upper boundary is measured. That was the view of the member at first instance.
12. We are of the view that the notations T and B do not sufficiently fully define the lower boundary. In short, we do not construe the word "AND" to have the consequence that the phrase "having a concrete surface" is intended to define the lower boundary. This has the consequence that the lower boundary of the relevant lots is defined by reference to s 5(2)(a), namely the lower boundary is the upper surface of the floor. In the circumstances this means that the upper surface of the timber decking is the lower boundary of the relevant unit. Ground 1 is rejected.
13. Ground 2 is also rejected. Our determination as recorded under Ground 1 as to the lower boundaries of the units is not dependent on the meaning of by-law 26.
14. Ground 3: the Appellant submitted that this ground falls for determination if the Appellant succeeds in its argument that the timber decking is lot property. The Appellant has not so succeeded and therefore ground 3 would appear not to require consideration.
15. We add that we are in agreement with the Respondents' submissions concerning the meaning and effect of by-law 26 in that we agree that by-law 26 must be understood as imposing the obligation of all maintenance, other than regular cleaning and minor upkeep to keep the timber decking in good order, upon the Appellant. We reject ground 3.
16. Ground 4: in our view this ground (which seeks to submit that the Tribunal erred in finding that it had no jurisdiction to find that by-law 26 was invalid on the basis that it was harsh, unconscionable or oppressive) does not require consideration given our finding that the timber decking constitutes common property. Seen in that light by-law 26 imposes no obligations upon the Appellant additional to those in the Strata Act (other than the specific annual obligation to reoil for the purpose of aesthetics) and instead arguably reduces those obligation by imposing some limited obligations upon the Respondents' as required by by‑law 26.1. In any event we are in agreement with the Tribunal that it had no jurisdiction in this case by reason that s 150 of the Strata Act was not available to the Appellant and that s 232(1) is not independently capable of providing a remedy to the Appellant. Ground 4 is rejected.
17. As ground 5 was not pressed we now move to grounds 6 and 7. The dispute between the parties arises out of the language of clauses 1 and 2 of the settlement agreement. Clause 1 provided that the "commencement/start date is dependent on resolutions at a general meeting". Clause 2 stated that it is agreed that the "Owners Corporation progress a tender option ... and ensure works commence on about the 3 August 2024". The Tribunal held at [58] that the agreement was not conditional on the passing of resolutions at a general meeting. However, the start date depended on resolutions, but the Owners Corporation needed to ensure that the work commenced by 3 August 2024.
18. We are in agreement with the Respondents' submissions concerning the construction of clauses 1 and 2 of the settlement agreement. In short, it is our view that the settlement agreement provided that the commencement or start date of the relevant work was dependent upon resolutions passed at a general meeting, that there was an obligation agreed to by the Appellant to progress a tender option and ensure works commence on or about the 3 August 2024. Accordingly, the resolution envisaged by clause 1 is limited to the specific commencement or start date which must be, by virtue of clause 2, on or about 3 August 2020. The interpretation contended for by the Appellant would result in the agreement being entirely conditional upon the passing of resolutions at a general meeting and therefore would have offered the lot owner (Ms Barnett) no assurance that work would commence.
19. Ground 7 is to the effect that the Tribunal appears to have not fully considered the Appellant's arguments concerning the proper construction of the settlement agreement. Whether or not that is the case the position is that we have considered the relevant clauses of the settlement agreement. Our view is expressed above and therefore no practical consequence arises out of any alleged deficiency in the Tribunal's consideration of this issue.
20. Grounds 6 and 7 are rejected.
21. Ground 8: this ground arises as an alternative to grounds 1-7 and the Appellant asserts that the Tribunal erred by exercising its discretion to make a work order for works to be completed and that the Tribunal failed to give the Appellant the opportunity to consider and determine the appropriate rectification methodology. A relevant consideration in the Tribunal's decision to make the work order was, as recorded at [94] of the Decision, that there was evidence that the Appellant had received a report in November 2023 setting out the significant damage to the timber decks. That report recommended replacement.
22. Contrary to the submission of the Appellant, we are of the view that that was a relevant consideration to be taken into account in determining whether a work order should be made. This ground does not raise a question of law and, in our view, there is no basis for the grant of leave. We agree with the Respondents that no issue of principle has been identified, nor has a question of public importance been raised and there is no clear injustice in the Tribunal's orders. The Appellant formed the view that it did not have obligations with respect to the timber decking and that view has been established to be incorrect. The consequence has been considerable delay in remedial work being undertaken. The Respondents have produced evidence as to the nature of the work order required. In our view, there is no error displayed by the Tribunal's order to require work to be undertaken. This ground is rejected.
23. Grounds 9 to 11: these grounds concern the order made by the Tribunal that the Appellant pay the Respondents' costs at first instance. Ground 10 asserts that the Tribunal erred in failing to accord the Appellant procedural fairness by its failure to invite submissions on costs prior to the making of the costs order. Both the Appellant and the Respondents referred to the fact that a Calderbank offer had been made and that that offer was not considered by the Tribunal at first instance.
24. In our view ground 10 should be upheld on the basis that the Appellant was not given an adequate opportunity to put forward submissions on costs and was thereby denied procedural fairness.
25. A question arises as to whether we can determine costs at first instance or whether there should be a remittal. The Respondents submitted that there should be a remittal. The issue of the Calderbank offer will give rise to questions as to whether, in the circumstances, it was unreasonable for the offer to have been rejected. This in turn will involve questions of fact applicable at the relevant time when the offer was made. We are inclined to the view that it would be desirable for the question of costs to be remitted to the same member for determination.
26. Finally, there is the question of whether we should make an order concerning costs of the appeal. The Appellant's submissions state that it wishes to be heard prior to the Appeal Panel making any determination as to costs. Given that costs in the Tribunal are discretionary, with the general principle being that each party should pay their own costs unless there are special circumstances warranting an award of award for costs or, in some cases, where there exists a discretion to award costs in the absence of special circumstances, it would, in our view, be appropriate and fair to both parties to allow them to put forward written submissions on costs of the appeal.
27. Accordingly, we make the following orders:

(1) The appeal is dismissed, subject to the orders below

(2) Order 4 made by the Tribunal on 7 July 2025 concerning costs at first instance is set aside and the question of what orders for costs at first instance should be made is remitted to the Tribunal for direction and consideration (preferably before the same member who heard the first instance proceedings).

(3) If the Respondents seek costs of the appeal, they must file and serve submissions in support of such application within 14 days from the date of these orders.

(4) Within 14 days thereafter, the Appellant may file and serve submissions in opposition to the Respondents' application for an order for costs of the appeal.

(5) The parties submissions concerning costs of the appeal should include a submission as to whether the Appeal Panel may determine costs of the appeal on the papers and, by so doing, dispense with a further hearing.

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.