Trajkovski v Harrison

The basis for an appeal

1. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act').
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 an Appeal Panel set out at [13] a non-exclusive list of questions of law, namely whether: 1. there has been a failure to provide proper reasons where they are required; 2. the Tribunal identified the wrong issue or asked the wrong question; 3. a wrong principle of law had been applied; 4. there was a failure to afford procedural fairness; 5. the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. the Tribunal took into account an irrelevant consideration; 7. there was no evidence to support a finding of fact; and 8. the decision is so unreasonable that no reasonable decision-maker would make it.
3. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are constrained by cl 12(1) of Sch 4 of the NCAT Act.
4. In such cases, the Appeal Panel must be first be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
5. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: 'there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.'
6. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
7. In Collins, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: '(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.'
8. The appellants were represented by Mr Jones who prepared their Notice of Appeal. Mr Jones is not a lawyer. Consequently, we will approach the appellants' grounds of appeal generally as suggested in Prendergast at [12] when an Appeal Panel stated: 'In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.'
9. This approach was expanded upon in In Cominos v Di Rico [2016] NSWCATAP 5, where an Appeal Panel stated at [13]: 13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
10. In their Notice of Appeal, the appellants alleged 17 errors of law. The alleged errors of law fall into the following groups: 1. The orders appointing Peter Clisdell Pty Ltd trading as Clisdells Strata Management ('Clisdells') as the strata managing agent of the strata scheme; 2. Denial of natural justice; 3. Findings which were not supported by the evidence; and 4. Bias;
11. The appellants have also asserted that the Tribunal Member was dishonest. In connection with the Grounds of Appeal which assert dishonesty, we have not been referred to any matter or document which could support such an allegation against the Senior Member. It is an assertion which never should have been made. Two of these Grounds of Appeal refer to matters which are asserted to be findings made by the Senior Member, when no such findings were actually made. The third matter refers to a finding which was not made, but the appellants assert should have been made. To the extent that the appellants assert that there were errors of law or grounds for leave to appeal based on dishonesty, we reject those assertions on the basis that that there is no substance to them.
12. The appellants also seek leave to appeal on the basis that the decision was not fair and equitable and was against the weight of evidence.

Bias

1. The appellants' Grounds of Appeal on bias are: 'On a great majority (or almost every single occasion) in which statements and/or evidence for the respondents opposed that of the appellants and in disregard of the burden or onus of proof the Member accepted the respondents evidence.' Failed to make orders incumbent upon to do so because it would undermine the respondents' position, potentially expose the respondents to an order for costs, and undermine the rational for the decisions made (such as a failure to make ab initio dismissal orders in favour of Mr Jakucs, dismissal orders in favour of Mr Trajkovski, and ors). Failed to properly take adverse account of the conduct of Ms Harrison (secretary) and Mr Brogan (committee) in refusing to execute a new strata management agreement with SMS-NSW and the FZI building contract in regard to the resolutions passed at the EGM dated 20 August 2020, in direct contravention of their duties as committee members and office holders. Conducting and allowing poor demeanour (sic) and poor conduct standards at the hearing: of repeatedly using a raised and agitated voice particularly against Mr Bannerman (mistaken referred to as Mr Jones); not sanctioning Mr Van Ede (respondents' legal representative) to continuously laugh during the entirety of the submissions made by Mr Bannerman and Mr Jones at the submissions hearing (18 March 2022) abruptly terminating the submissions hearing and not allow either Mr Bannerman or Mr Jones to make their submissions in reply. (In the case of Mr Jones to make any submissions at all regarding proceeding SC20/47772). Concluding that the OC had entered into a building contract with the Pinnacle Group ("Pinnacle") that was "regrettable" and represented poor value in comparison'
2. There is no indication that during the course of the hearing the appellants requested the Tribunal Member to recuse himself on the ground of apprehended bias.
3. In CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 at [71] - [72] Nettle and Gordon JJ stated, footnotes excluded: 'Finally, the remedies for apprehended bias reinforce the need to consider apprehended bias upfront. In cases of apprehended bias, recusal of the decision-maker is a possible remedy and is available before a decision is made. Indeed, in Michael Wilson it was said: "If a party to civil proceedings, or the legal representative of that party, knows of the circumstances that give rise to the disqualification [of a decision-maker] but acquiesces in the proceedings by not taking objection, it will likely be held that the party has waived the objection." Put in different terms, a remedy for apprehended bias should be sought (and, if appropriate, made) at the earliest possible time. There is no utility in allowing a flawed process to run to its conclusion.'
4. There was no submission in this appeal that due to the appellants' failure to raise the issue of apprehended bias during the hearing, the appellants had waived their right to appeal on those grounds. Further, the appellants were not legally represented, which is a relevant consideration in that regard. On that basis, to the extent that the appellants press actual or apprehended bias, we will consider those grounds of appeal.
5. For brevity, we will consider the allegations of error on their merits without specific reference as to whether a question of law has been identified or should properly be framed from the allegations of error, unless that becomes necessary.
6. There are differences between actual bias and apprehended bias.
7. The High Court of Australia has stated how to determine whether apprehended bias has been established. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at [6] and [7] the Court said: 'Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that a tribunal be independent and impartial. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.'
8. In The Owners - Strata Plan No 4159 v Wolff [2021] NSWCATAP 135 at [34] an Appeal Panel made the following comments in connection with apprehended bias and the passage extracted above: 'Application of the test "requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits". It also requires "an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits". The mere assertion of interest of a judge "will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can reasonableness of the asserted apprehension of bias be assessed": Ebner at [8]'
9. Actual Bias will include establishing that the Tribunal Member approached the issues in the proceedings with a closed mind or had prejudged them and could not be swayed by the evidence or submissions in the proceedings.
10. In ZOI v ZOJ [2021] NSWCATAP 30 an Appeal Panel at [75] - [76] discussed actual bias stating: 'The appellants allege actual bias. They bear the onus of demonstrating actual bias. It is a heavy onus to discharge: per French J in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 106, 107, cited with approval by Gleeson CJ and Gummow J in Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at 520. An allegation of actual bias must be distinctly made, clearly proved and supported by cogent evidence. A finding of actual bias should not be made lightly: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97]. In Jia Legeng, Hayne J explained at [183]: "Bias" is used to indicate some preponderating disposition or tendency, a "propensity; predisposition towards; predilection; prejudice". It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is "any thing which turns a man to a particular course, or gives the direction to his measures" [citations omitted].'
11. In Michael Wilson & Partners Limited v Nicholls [2011] HCA 48 the High Court at [33] stated: 'An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done'
12. Some of the Grounds of Appeal which are extracted above suggest actual bias. Other Grounds of Appeal suggest apprehended bias, while other Grounds of Appeal in this category appear to relate to dissatisfaction with the decision-making process.
13. In order to determine the appellants' Grounds of Appeal based on bias, we will deal with each Ground of Appeal.

The Member accepted the respondents evidence

1. The Ground of Appeal is: 'On a great majority (or almost every single occasion) in which statements and/or evidence for the respondents opposed that of the appellants and in disregard of the burden or onus of proof the Member accepted the respondents evidence.'
2. We discern this to be an allegation of actual bias in that it is suggested that the Tribunal Member had prejudged the issues or had a predisposition to find for the respondents, as opposed to making findings based on the evidence. The appellants' submissions did not expand upon this ground of appeal. Nor did Mr Jones address this ground in his oral submissions before us.
3. The fact that the Senior Member accepted the respondents' evidence in preference to the appellants does not in itself establish that the Senior Member was biased. If that were so, every litigant whose evidence was not accepted would be successful on the ground of bias.
4. Having regard to the statements from the relevant authorities in connection with actual bias, such as that it is a heavy onus to discharge, must be distinctly made, clearly proved, supported by cogent evidence, a finding not made lightly and requiring an assessment by reference to what the Senior Member had said and done, we are unable to find that the appellants have established by reference to any of these criteria, that the Tribunal Member was actually biased when making findings contrary to their interests.
5. If in fact the appellants are basing this ground of appeal on apprehended bias, we are not persuaded that the matters raised by this ground of appeal have been established, namely the fact finding process undertaken by the Senior Member might cause a fair minded lay observer reasonably to apprehend that the Senior Member might not have brought an impartial mind to the resolution of the matters in contest between the parties.
6. We reject these Grounds of Appeal.

Failure to make necessary orders

1. This Ground of appeal is: 'Failed to make orders incumbent upon to do so because it would undermine the respondents' position, potentially expose the respondents to an order for costs, and undermine the rational (sic) for the decisions made (such as a failure to make ab initio dismissal orders in favour of Mr Jakucs, dismissal orders in favour of Mr Trajkovski, and ors).'
2. We understand this to be an allegation of actual bias, based on the assertion that the Tribunal Member failed to make the correct orders (incumbent upon him to do so) because of some propensity; predisposition; predilection; or prejudice against making adverse orders against the respondents, including costs orders.
3. This Ground of Appeal is not supported by submissions, or by any persuasive evidence. As stated in connection with the preceding Ground of Appeal, there is a heavy onus to discharge an allegation of actual bias, the allegation must be distinctly made, clearly proved and supported by cogent evidence. Actual bias is a finding not made lightly and requires an assessment by reference to what the Senior Member had said and done.
4. The appellants have not clearly established by reference to any of these criteria that the Tribunal Member failed to make orders incumbent upon him because of some propensity; predisposition; predilection; or prejudice against making adverse orders against the respondents, including costs orders.
5. This Ground of Appeal is also rejected.

Failure to make adverse findings against Ms Harrison and Mr Brogan

1. This Ground of Appeal is: 'Failed to properly take adverse account of the conduct of Ms Harrison (secretary) and Mr Brogan (committee) in refusing to execute a new strata management agreement with SMS-NSW and the FZI building contract in regard to the resolutions passed at the EGM dated 20 August 2020, in direct contravention of their duties as committee members and office holders.'
2. The subject matter from which this Ground of Appeal is drawn appears to be conventional fact finding by the Tribunal Member. As this Ground of Appeal is placed under the heading of 'Bias', we discern the matters raised to relate to actual bias because the substance of the Ground appears to be that the Tribunal Member's mind was set against making findings adverse to the respondents.
3. The appellants have failed to make adequate submissions to support this Ground of Appeal. They have failed to state how the matters complained of were a deviation from a conventional exercise in fact finding and the basis upon which the Tribunal Member deviated from making findings which, on their case, he should have made on the evidence before him. To demonstrate bias, it was necessary for the appellants' submissions to have clearly referred to cogent evidence with reference to what the Senior Member had said and done in order to demonstrate that the Senior Member had approached the issues referred to in this Ground of Appeal with a closed mind or had prejudged them and could not be swayed by the evidence and submissions of the parties.
4. This Ground of Appeal is also rejected.

Conduct at the hearing

1. This Ground of Appeal, with examples, is stated to be: 'Conducting and allowing poor demeanour (sic) and poor conduct standards at the hearing: of repeatedly using a raised and agitated voice particularly against Mr Bannerman (mistaken referred to as Mr Jones); not sanctioning Mr Van Ede (respondents' legal representative) to continuously laugh during the entirety of the submissions made by Mr Bannerman and Mr Jones at the submissions hearing (18 March 2022) abruptly terminating the submissions hearing and not allow either Mr Bannerman or Mr Jones to make their submissions in reply. (In the case of Mr Jones to make any submissions at all regarding proceeding SC20/47772).'
2. There are numerous authorities concerning a judge's or tribunal member's interactions with the parties, or counsel, during the course of a hearing.
3. In R v The Commonwealth Conciliation and Arbitration Commission and Ors; ex parte the Angliss Group (1969) 122 CLR 546 the High Court considered an application for a writ of prohibition against the Commission on the grounds of apprehended bias and a breach of the principles of natural justice. The Court said, at pages 553-554: '[The] requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds.'
4. In VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872, Kenny J in the Federal Court said at [81]: "[81] Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. As Kirby J said in Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225, at 230: "While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator." As noted earlier, if a Member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but this conduct will not of itself constitute disqualifying bias. Mere insensitivity to an applicant, whether about his personal situation or otherwise, will also not amount to such error."
5. On 4 May 2022 in directions given at the call over an order was made, among others, that the appellants were to lodge with the Tribunal: 'The sound recording or transcript of the hearing at first instance if what happened at the hearing was being relied upon and a typed copy of the relevant parts.'
6. First, the appellants have not filed a sound recording or a transcript of the hearing in the Appeal Panel Registry. As a result of that failure, they cannot establish their allegation of that the Tribunal Member 'repeatedly using a raised and agitated voice'. Secondly, this appeal was commenced in the names of Messrs. Trajkovski and Jakucs. It is uncontroversial that in the proceedings at first instance that those individuals were represented by Mr Jones. It is also uncontroversial that in the proceedings at first instance, the Owners Corporation was represented by Mr Bannerman. We find that whatever the interchanges between the Senior Member and Mr Bannerman may have been, the appellants in this appeal are unable to rely on those interchanges as a ground of apprehended or actual bias against them, as they were represented by Mr Jones, not Mr Bannerman in the proceedings at first instance.
7. In related Appeal proceedings AP 22/137142 the appellant's submissions set out the exchanges between the Tribunal Member and Mr Bannerman for the Owners - Strata Plan No. 74442 that were referred to, with transcript references.
8. We have considered those exchanges referred to in AP 22/137142 insofar as they related to Mr Jones. There were no specific examples given of the Senior Member allegedly using a raised and agitated voice against Mr Jones.
9. The appellants have not referred us to transcript references which establish that Mr Van Ede (the respondents' legal representative) continuously laughed during the entirety of the submissions made by Mr Bannerman and Mr Jones at the submissions hearing on 18 March 2022, the last day of the hearing. In AP 22/137142, a similar complaint was made regarding Mr Van Ede's conduct on 10 March 2022, the second day of the hearing. This is different to the complaint made by the appellants in these proceedings.
10. The following extract was provided in AP 22/137142: "Mr Jones: [05:56:271 I see you laughing at me Mr van Ede, you can write out a cheque for 180,000 [unintelligible]- Senior Member: Mr - Mr Jones, just make your submissions will you, please Mr Jones: I've got someone laughing at me on the screen Senior Member Well ignore it Mr Bannerman: I think that you should instruct Mr Van Ede from stopping doing that, he was doing it when I was speaking as well. It is completely inappropriate - Senior Member Well - Mr Bannerman: - It's childish Senior Member: Well it's not having any impact on me. Mr Jones kindly finish your submissions'
11. The above transcript extract does not establish bias or reasonably apprehended bias on the part of the Senior Member. Nor does it establish a lack of procedural fairness. The extract establishes that the Senior Member was not affected by anything that Mr Van Ede was doing. He was focussed on having Mr Jones finalise his submissions.
12. On one view, it may prima facie seem to have been desirable for the Senior Member to have admonished Mr Van Ede. However, the context of the hearing the Senior Member was conducting needs to be considered. In that regard, the Senior Member had to manage the participation of three representatives, by AVL, where other aspects of the transcript we were referred to in the related appeal demonstrated that there were occasions where those parties spoke over each other. It should not be assumed that the Senior Member, who also had to compile notes from which to prepare his decision, was attempting to observe each representative's conduct on screen at all times. Nor is there an allegation that laughing can be heard on the recording of the hearing such that it should, of necessity, have come to the Senior Member's attention.
13. In that context, at the end of a long hearing and with parties in high conflict, one has to ask, hypothetically, what the Senior Member was to do? Clearly, embarking on an inquiry with the parties' representatives at to what Mr Van Ede had done, or the others observed, was unlikely to result in the just, quick and cheap resolution of the real issues in dispute. Further, simply by Mr Jones bringing his concerns to light, the Member might properly expect that any inappropriate conduct by Mr Van Ede would henceforth be curtailed, if only because the Senior Member would be more alert to look for it.
14. In those circumstances, the Senior Member not taking the matter of Mr Van Ede allegedly laughing any further was within the reasonable bounds of conduct of the hearing. Importantly, there is no suggestion that the allegation that Mr Van Ede was laughing prevented or impacted upon Mr Jones presenting his submissions. No question of law or basis for leave is identified in respect of this issue.
15. The third and final example given in support of this Ground of Appeal is that the Senior Member abruptly terminated the submissions hearing and did not allow Mr Jones to make his submissions in reply, or to make any submissions at all regarding proceeding SC 20/47772.
16. Because the appellants have not lodged with the Tribunal a sound recording or transcript of the submissions hearing on 18 March, they cannot not establish that the Senior Member: 1. terminated the submissions hearing and did not allow Mr Jones to make his submissions in reply; or 2. did not allow Mr Jones to make any submissions at all regarding proceeding SC20/47772.
17. In AP 22/137142 a similar submission was made in context of an alleged breach of the hearing rule by the Senior Member. The transcript references supplied in the appellant's submissions of 15 June 2022 were: 'Mr Bannerman: [01:01:15] I've, I've finished, I wouldn't mind a right to reply to Mr Van Ede [cross-talk] Senior member: No, no we're not talking rights to reply. Mr Jones, it's not 10.20. Um, yes, off you go.' Mr Van Ede: [02.33:08] They are my submissions
18. The appellants have not provided the evidence necessary to establish that the Senior Member acted with a propensity; predisposition; predilection; or prejudice against their interests. Nor have they explained precisely or demonstrated how they were deprived of a right to be heard in making their final submissions. We are not satisfied a fair minded lay observer might reasonably have concluded the Senior Member might not have brought a mind open to persuasion to the hearing.

Building Contract with Pinnacle

1. This Ground of Appeal is: 'Concluding that the OC had entered into a building contract with the Pinnacle Group ("Pinnacle") that was "regrettable" and represented poor value in comparison'
2. The basis for this Ground of Appeal is set out in [221] of the Tribunal's Decision, which states: 'As a result of the recent signing of a contract between the Owners Corporation and Pinnacle, the orders which the Tribunal can make are regrettably limited. The basis for the use of the word regrettably is that the work covered by the Pinnacle contract (1) will only be a partial repair, (2) some of that work may need to be subsequently removed and re-done by reason of it being a partial repair, (3) appears to involve a cost well beyond what is reasonably required for that work, and (4) will be focused on providing a benefit to the owners of units 21 and 23.' (Emphasis added)
3. The background to this paragraph is that, at [219] of the Decision, the Senior Member made 31 findings of fact which dealt with, among other things, the contract entered into between the Owners Corporation and Pinnacle.
4. Some of the relevant findings of fact made by the Senior Member were at [219(15) - (26)] as follows: 'After the Owners Corporation retained Mr Pitcher and three quotations were obtained, he conducted a tender review for two options: Option 1 being to repair only units 21 and 23 and Option 2 being a full repair. Mr Pitcher prepared a comparison sheet (2/76) which provided details under items numbered 1 to 7 which reveal (contrary to the suggestion of Mr Trajkovski) that the cost of Option 1 was included in Option 2. That comparison sheet revealed that the cheapest cost for Option 2 was $375,650 whose cost for Option 1 was $38,896. That quotation for $375,650 was accepted at a meeting held on 27 February 2020. A quotation for $189,000 from FZI was for Option 1 and, while that quotation did contain some additional work, that work did not warrant the additional amount of $151,896 (i.e. $189,000 quoted by FZl less $38,896 quoted by Fusion). On 20 August 2020 the decision to accept the Fusion quotation was revoked and the FZI quotation was accepted instead. Recently, on 27 February 2022, the Owners Corporation resolved to accept a quotation from Pinnacle for $313,700 and contract was signed the next day and the scope of work for that contract is comparable to that covered by the FZI quotation. Although it was claimed, by Ms Tsiavos, that a strata committee meeting held on 6 June 2021 resolved to "instruct a qualified civil engineer to inspect the tender of the building and to recommend a scope of works", no minutes of that meeting, no documents sent to or from such civil engineer, and no scope of works was placed before the Tribunal. Indeed, the Tribunal was only provided with the first page of the three page quotation of Pinnacle (4/296). As a result, the Owners Corporation has resolved on 27 February 2022 to pay $313,700 for work which is focussed on Units 21 and 23, based on Option 1, compared to it having resolved on 27 February 2020 to pay $375,650 in for full repair, based on Option 2. The contract with Pinnacle for $313,700, like the quotation of FZI, includes work beyond that covered by Mr Pitcher's Option 1. However, there is no adequate explanation for the difference between Fusion's $38,896 and Pinnacle's $313,700 or between FZI's $189,000 and Pinnacle's $313,700. Even allowing for costs to have increased over the two years between 27 February 2020 and 27 February 2022, there is no evidence that those significant cost differences will benefit any lot owners other than the owners of units 21 and 23. Carrying out rectification work in units 21 and 23 will fully address the effects of the waterproofing issues in those units but the work covered by the contract with Pinnacle will not fully address the causes of the waterproofing issues. Further, the work covered by the FZI quotation and the Pinnacle quotation, did not address the work required in units 7 or 11. If the work covered by the Pinnacle contract proceeds, money is likely to be wasted as it is reasonable to expect it to become necessary to remove the partial replacement of a waterproofing membrane and install a full waterproofing membrane.
5. The above findings of fact led the Senior Member to make the finding at [221] referred to above. Contrary to what the appellants assert in this Ground of Appeal, the Senior Member did not say that the Owners Corporation had entered into a building contract with the Pinnacle Group that was 'regrettable'. The Senior Member stated that: 'the orders which the Tribunal can make are regrettably limited'
6. He then explained why he used the word 'regrettably'. This Ground of Appeal based on either actual or apprehended bias must fail since the essence of the Ground relies on a misconception of what the Senior Member actually said. To the extent that it is said that the Tribunal Member concluded that the building contract with the Pinnacle Group 'represented poor value', no such statement was made by the Senior Member, although as much might be inferred by what was stated at [221].
7. To the extent that such an inference was made by the Senior Member, the factual basis for drawing such an inference was contained in the facts found by the Senior Member at [219(15) - (26)] of the Reasons. We reject the appellants' assertions that there was bias or reasonably apprehended bias in the making of this element of the decision. The Senior Member having made the necessary factual findings drew the conclusions that he determined followed by reason of the factual findings. This Ground of Appeal is rejected.

Denial of Natural Justice

1. We discern that the Ground of Appeal relied upon under this heading is: 'The Member had made an error in law (serious), handing down orders at about 3.00 p.m. on 25 March 2022 and appointing Clisdells as manager with effect by 5.00 p.m. that afternoon in a gross denial of natural justice depriving the OC of an opportunity (1) to seek a stay of the original decision and (2) to appeal the decision.'
2. When the Senior Member finalised his decision for publication on 25 March 2022, he was under no obligation to provide any party with an opportunity to consider the decision so that they might apply for a stay of the decision or file an appeal. We reject the appellants' ground of appeal as set out above. The Senior Member had no obligation to provide the appellants with the opportunities that they have referred to.

Findings not supported by the evidence

1. We agree that if there was no evidence to support a finding of fact made by the Tribunal, the Tribunal will have made an error on a question of law. Refer Prendergast at [7(7)].
2. We discern that the Grounds of Appeal relied upon under this heading are: 'The Member had made an error in law (serious) in finding that the owners corporation ("OC") gave preference to effect repairs to unit 21 (Mr Sandor Jakucs) and unit 23 (Mr Petar Trajkovski) unreasonably (unlawfully) and at the expense of all OC members: F.1 in complete disregard to the legal principle of duty of care, and law of negligence and/or nuisance. The Member had made an error in law (serious) in finding that Mr Scott Pitcher (inexperienced, unqualified) was an expert (and credible) witness. The Member had made an error in law (serious) in failing to comprehend that Mr Trajkovski was not a committee member at the relevant time. Accordingly, allowing irrelevant facts into evidence and failing to conduct the hearing in a just, quick and cheap manner.'
3. To establish the Ground of Appeal in the first paragraph of the above extract the appellants must first identify the finding referred to, namely that the Owners Corporation gave preference to effect repairs to unit 21 (Mr Sandor Jakucs) and unit 23 (Mr Petar Trajkovski) unreasonably and at the expense of other lot owners. In their Notice of Appeal and the documents attached to it the appellants have not identified where the findings they say are affected by error of law are in the decision. We have also had regard to the appellants' document titled 'Outline Submissions Appellant's All' which also does not identify the findings which are referred to. The Senior Member's decision was long and detailed. A table of contents was provided on page 6 which conveniently sets out the matters considered by the Senior Member. The Senior Member's relevant findings of fact were made at [219] and [226] of the decision. At [219], in relation to s106 of the SSMA the Senior Member made 31 findings of fact. None of those findings included a finding in the terms referred to in the first paragraph of the above extract. At [226], in relation to s 237(3)(a) of the SSMA, the Senior Member made 21 findings of fact. Similarly, none of those findings included a finding in the terms referred to in the first paragraph of the above extract. The appellants have not established that the Senior Member made the findings of fact that they say are affected by an error of law because there was no evidence to support the findings. We reject this Ground of appeal.
4. We have considered the Ground of Appeal in the second paragraph of the above extract. The Senior Member referred to Mr Pitcher's evidence at [69] - [81] and at [85] - [92]. At [69] and [70] the Senior Member stated: 'Mr Pitcher prepared a report dated 18 February (4/66) that that was attended by Group 2. It sets out his views in relation to the causes and effects of water penetration. That report led to tenders/quotations being obtained. Subsequently Mr Pitcher prepared a tender review dated 26 October 2020 (1/63). His qualifications and experience are evident from a copy of his curriculum vitae (cv) is located at the front of Exhibit 1 and acknowledged that he has read and agreed to be bound by the code of conduct for expert witnesses. His education was university-level, he has more than 30 years of industry experience, and has been a building consultant for a number of years. It is noted that he disclosed in his cv that he has done work at the request of Sarraf Strata and Clisdells Property Managers.'
5. At [87] the Senior Member stated: 'While Mr Bannerman did not wish to ask Mr Pitcher any questions, Mr Jones did. Mr Pitcher denied a suggestion he did not have the necessary expertise or that he admitted being an expert in relation to waterproofing at an earlier hearing, on 12 August 2021.'
6. Importantly, at [91] the Senior Member stated: 'Mr Jones requested the Tribunal listen to a recording of an earlier hearing on 12 and 13 August 2021 before another member of the Tribunal (exhibit six) because it was suggested Mr Pitcher had, on that occasion, admitted he did not claim to be an expert and/or that he did not have the requisite qualifications and experience. Mr Pitcher denied making any such admission. It is sufficient here to record that the Tribunal has listened to the oral evidence given by Mr Pitcher on 13 August 2021 and does not accept such contentions.'
7. We have reviewed the Senior Member's decision. So far as we are aware no express finding was made that he accepted Mr Pitcher as an expert with the necessary qualifications to give opinion evidence in the Tribunal. However, we find that it is to be inferred from the paragraphs of the decision that we have extracted, that the Tribunal Member held that view of Mr Pitcher, namely that he possessed the necessary experience and qualifications to give expert evidence in the Tribunal. That inference is reinforced by the Senior Member's finding at [90] of the decision: 'Further, it is important to note that Mr Pitcher was not challenged as to the opinions express[ed] in his report.'
8. We find that the Senior Member's acceptance of Mr Pitcher as an expert witness whose evidence could be relied on was soundly based having regard to the extracts from the decision that we have set out, especially his reference to Mr Pitcher's qualifications and experience at [70] and the fact that his opinions had not been challenged, at [90]. This challenge does not raise a question of law and the challenge to the Tribunal's findings do not rise above the merely arguable, and so does not warrant a grant of leave.
9. For the reasons expressed above, we reject the Ground of Appeal in the second paragraph of the above extract from the appellants' grounds of appeal.
10. As regards, the third paragraph of the above extract from the appellants' grounds of appeal, the appellants have not demonstrated that the question whether Mr Trajkovski was or was not a committee member at the relevant time had any relevance to the decision and the orders made by the Senior Member. The appellants have not identified the allegedly irrelevant facts allowed into evidence or how that caused a failure to conduct the hearing in a just, quick and cheap manner. We reject this Ground of Appeal because in our view it does not establish that the Senior Member fell into error.

Further Ground based on error of law

1. The appellants at I of Part I of their Grounds of Appeal assert that that the Senior Member fell into error on a question of law by 'disregarding and failing to apply the fundamental principle of the 'onus of proof''. We agree that a failure to apply the civil onus of proof would be an error of law. The Senior Member referred to the onus of proof at [193] and [194] of the Reasons for Decision. His statement of the law as regards the onus of proof accords with orthodox principles.
2. The appellants have not referred us to any instance in which the Senior Member failed to adopt orthodox principles concerning the onus of proof when making findings of fact in these proceedings. This Ground of Appeal is rejected on that basis.

Part III of the Grounds of Appeal

1. Under this heading the appellants respond to the findings of fact made by the Senior Member at [219] of the reasons. In 119 paragraphs the appellants refer to a wide range of matters in an apparent attempt to establish that the Senior Member's findings were erroneous. This is an impermissible way in which to conduct an appeal, being more in the nature of re-running the appellants' case. If it is asserted that the appellants suffered a substantial miscarriage of justice because the Senior Member's findings were against the weight of evidence, the appellants were obliged first, to identify the evidence at first instance that they relied upon and secondly, to demonstrate that the evidence in its totality preponderates so strongly against the findings of the Senior Member's findings that it could be said that the findings were not ones that a reasonable tribunal member could reach. Refer Collins at [77(2)]. The appellants have not adopted this approach. Leave to appeal is not granted on the basis of the 119 paragraphs set out in Part III of the Grounds of Appeal.

Orders appointing Clisdells as the strata managing agent of the strata scheme

1. The appellants' grounds of appeal deal with this subject at Part 1, B, C, and D stating the errors of law to be: 'The Member had made an error in law (serious) in appointing a compulsory strata managing agent ("manager") to exercise all functions of the OC; additionally, for a period of 2 years. The Member had made an error in law (serious) in appointing the manager to exercise all functions of the chairperson, secretary, treasurer and strata committee; additionally, for a period of 2 years. The Member had made an error in law in appointing Peter Clisdell Pty Ltd trading as Clisdells Strata Management ("Clisdells"): D.1 in neglect of or discount to the serious conflict of interest issues affecting the proceedings; additionally D.2 with no supporting or no reasonable evidence to show that Clisdells has the competence and/or experience in dealing with the issues contained in the proceedings.'
2. In a document dated 12 July 2022 titled 'Outline Submissions Appellants' All' Mr Jones sought to establish that the Tribunal member's discretion miscarried in determining: 'The owners corporation endorsed an inadequate scope of works; the owners corporation was not functioning satisfactorily; a compulsory strata managing agent ("Agent') be appointed; the appointment period be for two years; the financial cost of appointment will be offset by the agent's involvement; and that Peter Clisdell Pty Ltd [sic] be appointed agent.'
3. The appellants' submissions did not identify the alleged errors of law in the decision. Rather they were more in the nature of a commentary on the decision, making assertions which were, in most instances, not cross referenced to the evidence such that it was not possible to ascertain whether the submissions were raising matters which had an evidentiary foundation, or which were now made for the first time. Appeal Panels have on numerous occasions stated that an appeal is not an opportunity for an appellant to run his or her case again or have a "second chance". (Ryan v BKB Motor Vehicle Repairs Pty Limited [2017] NSWCATAP 39). Likewise, the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states: "an appeal is not an opportunity to have a second go at a hearing". Further, it is not sufficient for the appellant to disagree with the outcome and to contend that there should have been a different outcome: the appellant must demonstrate either that an error was made on a question of law or that there is a basis upon which leave to appeal should be granted.
4. In Part II of the Grounds of Appeal the appellants raise nine matters which allege failures on the part of the Senior Member to, among other things, acknowledge the objectives of the Owners Corporation as expressed at an Extraordinary General Meetings held on 20 August 2020 and on 27 February 2022 and at an Annual General Meeting held on 11 May 2021. The nine matters referred to are: '1. Failed to acknowledge adequately or at all the objectives of the owners corporation ("OC") as expressed by the majority in the resolutions passed at the extraordinary general meeting (EGM) on 20 August 2020. 2. Failed to recognise adequately or at all the objectives of the owners corporation (OC) as expressed by the majority in the resolutions passed at the Annual General Meeting (AGM) on 11 May 2021; and a further EGM on 27 February 2022. 3. Failed to give the proper consideration to the draconian adverse effects including financial, psychological and the like impacted on every OC member associated with the appointment of the compulsory strata managing agent; and on the terms of the appointment. 4. The evidence has shown that the OC (except for the respondents) has operated satisfactorily, has understood the need for repair and maintenance of the common property and identified the works required. 5. The OC despite the respondents preventing endeavours through a succession of committee meetings, and general meetings EGM and AGM held on 4 November 2019, 10 December2019, 27 February 2019; 20 August 2020, 11 May2021 and 27 February 2022 and attempts such as NSW Department of Fair Trading Mediation Hearing also on 27 February 2020 have resolved reasonable, rational and best interest outcomes. 6. Prior to the EGM dated 20 August 2020 the OC had raised by approved special levies the sum of approximately $500,000. A complete example of it operating satisfactory. 7. At that EGM it was expressly agreed that any surplus (then about $311,000) funds would be used for additional repair and maintenance work, and any overpayments would be returned to all members in equal proportion. 8. On 4 November 2019 the OC unanimously consented to adjourn the EGM to provide the respondents at the request of Mr Brogan an opportunity to obtain additional builders quotations for the benefit of the OC. A further example of the OC operating satisfactory. 9. At all relevant times the OC (except for the respondents) has recognised its obligation to achieve lawful compliance with its obligation to repair any strata unit(s) that have been damaged by water penetration originating from the common property area.'
5. At [6], [12] and [13] of these reasons we referred to the decisions in Prendergast and Cominos v Di Rico in connection with self-represented litigants. We will adopt the same approach to the appellants in this appeal, with respect to their representative Mr Jones who, so far as we are aware, does not have a legal background. The nine issues that are extracted above are not, so far as we can ascertain, developed in the appellants' Outline of Submissions. The Senior Member's critical findings in relation to the compulsory appointment of a strata managing agent are at [223] - [227] of the decision with further findings at [230] and thereafter. In accordance with what was said in Prendergast and in Cominos v Di Rico we have considered whether any of the nine grounds extracted above raise questions of law in connection with the findings relating to the compulsory appointment of the strata managing agent. We find that no question of law has been raised. Whilst we deal with the fact that the Clisdells' terms and conditions were not in evidence in related appeal 22/137142 and reject the allegation of error based on issues arising from that fact, that was not part of the grounds we set out above. The ground set out under "D2" we have recited at [85] above goes to different issues, being the alleged lack of any evidence as to Clisdells' competence and/or experience. Such a ground cannot be made out in the absence of the sound recording or transcript. We simply do not know whether that was put in issue or, if so, how it was addressed.
6. We have also considered whether the nine grounds indicate that leave to appeal ought to be granted because the appellants may have suffered a substantial miscarriage of justice on the basis that the decision of the Tribunal was not fair and equitable or was against the weight of evidence. Having regard to the Senior Member's critical findings regarding the appointment of the strata managing agent as referred to above, we are unable to find that the nine grounds form a proper basis for finding that leave to appeal should be granted. The nine grounds are in our view more aptly characterised as the appellants seeking to run their case again. The same may be said for the appellants' submissions referred to in [86].

Determination of Appeal

1. Leave to appeal is refused and the appeal is dismissed.

Costs

1. In the event that one or other of the parties seeks a costs order, the following directions apply.
2. If a party to this appeal wishes to bring a costs application, such application must be filed in the Appeal Panel Registry and given to the costs respondent(s) within 14 days of the date of the decision in this appeal, either attaching or referring to the documents relied upon in support of the application.
3. The costs respondent(s) shall within a further 14 days file in the Appeal Panel Registry and to the costs applicant(s) their or its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.
4. The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.
5. Subject to the parties' submissions, the Appeal Panel may determine any costs application made on the basis of the papers that have been filed.

Orders

1. For the reasons above, we will order that: 1. Leave to appeal is refused; 2. The appeal is dismissed; 3. If a party or parties to this appeal wishes to bring an application for costs those parties are to lodge in the Appeal Registry and give to the other parties their evidence and submissions in support of the application for costs, within 14 days. 4. Any submissions and evidence in response to the costs application(s) are to be lodged with the Appeal Registry and given to those parties within 14 days thereafter. 5. Any submissions in reply are to be lodged with the Appeal Registry and given to the other parties within 7 days thereafter. 6. Submissions on the application for costs by each party are not to exceed five pages in length. 7. The Appeal Panel may dispense with a hearing and determine any application for costs on the basis of the written submissions and evidence provided. If the parties oppose this course, they should make submissions on this issue when complying with the directions as to their submissions on the substantive costs application. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of the application.

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