Togaru v The Owners- Strata Plan No.90193

1. The Tribunal provided oral reasons for its decision and also provided brief reasons in writing.
2. Section 106(5) of the SSMA provides that an owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of contravention of section 106 by the owners corporation. The Tribunal noted that at the time that Mr Togaru lodged his application, section 106(6) of the SSMA provided that an owner may not bring an action under section 106 for breach of a statutory duty more than two years after the owner first becomes aware of the loss. (This time period was changed to six years by the Strata Schemes Legislation Amendment Act 2025, with effect from1 July 2025).
3. The Tribunal's written reasons record that Mr Togaru gave evidence that he first began to experience great distress about the repairs and the inaction of the Owners Corporation in 2019 or 2020, which was why he made a complaint to Fair Trading in January 2020. The Tribunal found that the time limit for compensation for distress began to run from January 2020, when Mr Togaru first became aware of that particular loss. As Mr Togaru's application was lodged outside the applicable two year time limit, the Tribunal dismissed his claim for compensation for distress.
4. The Tribunal accepted that in August 2022 Mr Togaru put the unit on the market. The Tribunal's written reasons note that Mr Togaru gave evidence that there was a lot of interest in the unit but ultimately no one would commit to a purchase because of the leak and state of disrepair. The reasons record that Mr Togaru took the unit off the market in about October 2023 and that his evidence was that the agent had told him that the unit could have sold for $405,000 to $410,000.
5. The Tribunal's written reasons record that while there was evidence of the agent's commission, there was no evidence of other likely expenses of sale such as legal/conveyancing fees and bank fees. The Tribunal noted that Mr Togaru gave evidence that the unit was mortgaged and that he estimated that the amount owed to the mortgagee at the relevant time was about $170,000 . The Tribunal noted that there was no documentary evidence to confirm this.
6. It is apparent from the way in which the Tribunal's reasons are expressed that the financial loss claimed by Mr Togaru was the net sale price of the unit. which he would otherwise have achieved in about 2023. It is also apparent that the Tribunal characterised the claim for the loss of the sale as separate to the claim for mental distress and that the two year time limit imposed at the time by section 106(6) of the SSMA was not a bar to the claim for the loss of the sale.
7. The Tribunal held that for Mr Togaru to obtain compensation for the loss of the sale he must prove that he suffered a loss. The Tribunal was not satisfied that the unit, in a proper state of repair, could have sold for up to $410,000 in the absence of a property valuation , or at least direct evidence from the real estate agent. Nor was the Tribunal satisfied of the expenses which Mr Togaru would have incurred on sale or of the amount payable to the mortgagee in the absence of evidence which was reasonably available to him.
8. In these circumstances the Tribunal concluded that there was no rational foundation for the Tribunal to make a proper assessment of compensation and also dismissed the claim for compensation for loss of the sale.

1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10];Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54 at [51].
2. Internal appeals to the Appeal Panel may be made as of right on a question of law, and otherwise if the Appeal Panel grants leave: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act).
3. Principles relevant to assessing whether a question of law arises were recently summarised by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204. In Unique, the Appeal Panel noted at [28] that when dealing with self-represented parties the Appeal Panel has in many instances considered for itself whether a question of law is raised.
4. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

(a) the decision of the Tribunal under appeal was not fair and equitable; or

(b) the decision of the Tribunal under appeal was against the weight of evidence; or

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:

... there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.

1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(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. The Notice of Appeal was lodged within time on 27 August 2025.It was prepared by Mr Togaru. He stated in the Notice of Appeal that he did not know if he needed leave to appeal. In essence, Mr Togaru said in his grounds of appeal that he had provided the evidence to the Tribunal which he thought was sufficient and that the Tribunal should have requested him to provide further evidence if it was required.
2. Mr Togaru's Notice of Appeal claims that he now has further evidence available for the Appeal Panel on which he wished to rely, including a property appraisal from a real estate agent, a property valuation, bank loan statements and other bank documents recording bank discharge fees and charges.
3. Putting Mr Togaru's Notice of Appeal into a legal framework, Mr Togaru does not raise any question of law. In our view, in essence, Mr Togaru seeks leave to appeal on the basis that the Tribunal should have given more weight to the evidence which was available and that significant new evidence is now available that was not reasonably available at the time of the hearing.

1. Mr Togaru's written submissions state that he has now provided to the Appeal Panel all the evidence which the Tribunal said was missing. Mr Togaru emphasised that the Owners Corporation had been in breach of its obligation for nine years and that he had been requesting the Owners Corporation to fix the problem for this period of time.
2. In his oral submissions to the Appeal Panel, Mr Togaru said that he accepted that he had brought his claim for mental distress outside the required time limit and that his appeal was limited to his claim for compensation for loss of the sale of the unit in 2022-2023.
3. When it was put to Mr Togaru that he still had the unit and therefore had suffered no loss, Mr Togaru said that he had wanted to sell the unit in 2022 and move on.
4. Mr Togaru said in his oral submissions that the reason that he did not provide to the Tribunal the further evidence on which he now wished to rely was because he did not know that it was required.
5. The Owners Corporation opposed Mr Togaru's appeal. The Owners Corporation also made a claim for costs of $3,190. This was said to be for work carried out by Ms Browne calculated at a rate of $220 per hour. In oral submissions Miss Brown acknowledged that some of the work the subject of the claim included work for the Tribunal hearing which predated the appeal by Mr Togaru. Ms Browne also acknowledged that she was not a lawyer and the claim was not for legal costs.

1. As we have indicated (see paragraph [14] and following above) an appeal to the Appeal Panel is not an opportunity for a losing party to run their case again. The evidence which Mr Togaru sought to place before the Appeal Panel was not new evidence which was not reasonably available at the time of the Tribunal proceedings within the meaning of clause 12(1)( c) of Schedule 4 of the NCAT Act.
2. The test of whether evidence is not reasonably available at the time of the Tribunal proceedings is an objective one and is not considered by reference to any subjective explanation from the party seeking leave. It must be established that no person could have reasonably obtained the evidence: see Al-Daouk v Mr Pine Pty Ltd [2015] NSWCATAP 111 at [23]- [24].
3. The purpose of limiting the introduction of fresh evidence to evidence that was not reasonably available at the time of the initial hearing is to ensure cases are finalised. Without such a limit on the introduction of fresh evidence the losing party would seek to improve their case with new evidence with the consequence that the case would be heard again delaying the case being finalised. Further the Tribunal has no obligation, as Mr Togaru suggested, to review a party's evidence and give advice on what additional evidence is recommended. If the Tribunal did make such a recommendation it would risk being accused of lacking impartiality.
4. In this case the evidence on which Mr Togaru seeks to rely existed or could have been brought into existence prior to the Tribunal hearing. Mr Togaru acknowledged that he did not know that the evidence was required. It was however reasonably available and cannot now be relied on in this appeal.
5. We consider that the Tribunal was entitled to conclude that, on the evidence presented to it, Mr Togaru had not established any loss as a result of being unable to sell the unit in 2022-2023.
6. There is however a more fundamental reason why Mr Togaru's claim for financial loss based upon the net sale price of the unit must fail. Mr Togaru still owns the unit which he failed to sell in 2022-2023. There was no suggestion in the evidence before the Tribunal that the unit is worth less now than it was worth in 2022-2023. In these circumstances Mr Togaru has not suffered any financial loss on the basis on which he claimed it. He still owns the asset and can sell it in the future with the benefit of the repairs which the Tribunal ordered the Owners Corporation to carry out.
7. In these circumstances we are satisfied that Mr Togaru has not suffered a substantial miscarriage of justice as a result of the Tribunal decision. Leave to appeal should be refused and the appeal should be dismissed.

The claim by the Owners Corporation for costs of the appeal

1. Section 60 of the NCAT Act relevantly provides that each party is to pay the party's own costs and that the Tribunal may award costs only if it is satisfied that there are special circumstances warranting such an order.
2. Section 60(4)(b) of the NCAT Act provides that if costs are to be awarded, the Tribunal may "order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis".
3. Despite section 60 of the NCAT Act, the relevant effect of Rules 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules) is that in an internal appeal from a decision of the Consumer and Commercial division of the Tribunal where the amount claimed or in dispute is more than $30,000, the Appeal Panel may award costs in the absence of special circumstances. As Mr Togaru's claim for financial compensation was for an amount in excess of $30,000, in this case 38 and 38A apply.
4. The term 'costs' is not defined in the NCAT Act or the NCAT Rules. The provisions are linked and by virtue of section 11 of the Interpretation Act 1987 the term as used in Rules 38 and 38A of the NCAT Rules has the same meaning as it has when used in section 60 of the NCAT Act.
5. The claim for costs by the Owners Corporation is for amounts payable to a strata manager for work done by the strata manager on behalf of the Owners Corporation in relation to the appeal. It is not a claim for legal costs or disbursements. Halsbury's Laws of Australia online edition, states at [325-9400] that the term 'costs' is used to refer to the remuneration of a lawyer for professional services rendered to a client. An issue in this case is whether 'costs' within the meaning of the NCAT Act and NCAT Rules extends beyond its ordinary and traditional meaning to work done in relation to the appeal by a strata manager, who was not legally qualified.
6. There is nothing in the Explanatory Memorandum accompanying the introduction of the Civil and Administrative Tribunal Amendment Bill 2013 (Bill) into the NSW Parliament which sheds any light on the meaning of the word 'costs' in the Bill or which suggests that the term was being employed in some way other than its ordinary and traditional meaning. Nor is there any indication in the Second Reading Speech by the Attorney-General and Minister for Justice introducing the Bill on 30 October 2013 that the term 'costs' in the Bill was to be interpreted in a different way. The Attorney-General (The Hon. Mr Greg Smith) did however emphasise in his speech that NCAT was being established to provide the citizens of NSW " with a cost-effective, informal and efficient forum for resolving disputes and other matters". The Attorney-General also stated that the guiding principle in what became section 36 of the NCAT Act "requires the tribunal to ensure that the cost of proceedings remains proportionate to the importance and complexity of the matter that is in dispute."
7. NCAT publishes Guidelines which, whilst not legally binding like the NCAT Act and NCAT Rules, are intended to provide guidance on specific issues. The Consumer and Commercial Division Costs Guideline dated August 2017 (Guideline) states:

a) The fees charged by their lawyer or professional agent for preparing or running the case.

b) The disbursements of their lawyer or professional agent. Disbursements are extra 'out of pocket' expenses charged by a lawyer or professional agent -such as Tribunal filing fees, witness expenses and photocopying charges.

c) The disbursements' [sic] of a self-represented party or non-professional agent - such as Tribunal filing fees, witness expenses and photocopying charges.

10. A party cannot ask for any of the following costs:

b) Their own time spent in preparing or running the case, or lost earnings of a self-represented party or non- professional agent.

1. The notion of a 'professional agent' referred to in the Guideline is not defined. It is not clear whether strata managers in general or the strata manager for the Owners Corporation in particular would constitute a 'professional agent' within the contemplation of the Guideline. However it seems reasonable to presume that the strata manager for the Owners Corporation would be considered a 'professional agent'. In NSW a strata managing agent is required to be licensed to provide management services for strata schemes. Certain qualifications are required by the Property and Stock Agents (Qualifications) Order 2019. Continuing professional development training is required.
2. Notwithstanding the Guideline, in 2018 the Appeal Panel (Principal Member Britton) in Pro_fitability Consulting Pty Limited v Thorpe_ [2018] NSWCATAP 41, after extensively reviewing a number of authorities, including Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403, concluded that the term 'costs' in section 60 of the NCAT Act meant legal costs. This was consistent with the decision of the Appeal Panel in Hammond v Ozzy's Cheapest Cars Pty Limited [2015 NSWCATAP 65, which applied Cachia.
3. Cachia concerned a claim for costs in proceedings in the Supreme Court of New South Wales by a party which had not been legally represented. The party claimed compensation for the loss of his time spent in the preparation and conduct of his case and for out of pocket expenses, being travelling expenses. These claims were disallowed and the High Court confirmed the decision disallowing these costs. The High Court concluded that the term 'costs' in the rules of the Supreme Court of NSW were confined to money paid or liabilities incurred for professional legal services.
4. Principal Member Britton in Profitability Consulting noted that a different approach had been taken by the President of the Victorian Civil and Administrative Tribunal in Aussie Invest Corporation Pty Ltd v Hobsons Bay CC [2004] VCAT 2188. In that case, Morris J reached the view that the decision of the High Court in Cachia was not applicable to VCAT because the circumstances of that tribunal were very different to proceedings in the Supreme Court of New South Wales. Morris J in Aussie Invest took the view that it was necessary to consider costs in the Victorian tribunal by reference to the constitution, purpose and practices of that tribunal.
5. The Appeal Panel in Profitability Consulting concluded that the term costs in section 60 the NCAT Act should not be given the broad meaning adopted by Morris J in Aussie Invest. The Appeal Panel reached this conclusion for three reasons. First, the High Court had explained in Cachia that since the notion of costs had first been introduced, it had referred to professional legal costs. Secondly, interpreting the term to mean legal costs was consistent with section 60(4) of the NCAT Act (set out above at [36]), which permitted costs to be assessed in accordance with the 'legal costs legislation'. In that legislation, legal costs are relevantly defined to mean amounts charged by a legal practitioner. The Appeal Panel observed that it would be anomalous if section 60 of the NCAT Act permitted the Tribunal to award expenses that did not fall within the definition of legal costs in the legal costs legislation yet nevertheless permitted the Tribunal to order that those costs be assessed under that legislation. Thirdly, if the general approach to the award of costs were to be varied in NCAT from that which applies in courts, it is likely that this would be made plain in the NCAT Act.
6. We find the reasoning of the Appeal Panel in Profitability Consulting to be compelling. There is no support in the terms of the NCAT Act or NCAT Rules or in the extrinsic materials for taking a more expansive approach to the traditional interpretation of 'costs' which has been consistently applied in courts. On the contrary, section 60(4) of the NCAT Act supports that traditional interpretation. Moreover, it would be surprising and anomalous if Parliament intended that a tribunal established to provide a cost-effective, informal and efficient forum for the resolution of disputes should have a more expansive power to award costs against a party than that which applies in courts in NSW.
7. It is relevant to note that the factual context in Profitability Consulting involved a claim by an unrepresented party for out-of-pocket expenses (child care, travel and accommodation) in attending the appeal. It did not involve a claim for costs incurred by what might be considered to be a 'professional agent'. Nevertheless, in our view the reasoning in Profitability Consulting applies with equal force to a claim for costs charged by a non- lawyer and which do not involve the provision of legal services.
8. We are reinforced in this conclusion by subsequent decisions of the Appeal Panel. The reasoning in Profitability Consulting was referred to with approval by the Appeal Panel in Cornucopia (Young) Pty Ltd v Ward [2024] NSWCATAP 59 at [80]. In Abdul-Messih v Wang (No.2) [2018] NSWCATAP 209, the Appeal Panel rejected an application for costs based on the professional fees of a licenced real estate agent representing a landlord in the Appeal Panel. Although the application was ultimately rejected due to the absence of special circumstances, relying on Profitability Consulting the Appeal Panel stated that the professional fees of a real estate agent were not legal costs in respect of the provision of legal services. Moreover, it was difficult to see how those fees fell within the definition of disbursements.
9. We have therefore reached the view, notwithstanding the Guideline, that the Owners Corporation is not entitled to an order for costs based on amounts payable for fees charged by a non-lawyer which are not legal costs or disbursements and do not involve the provision of legal services.

1. We make no order in relation to the costs of the appeal.

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.