Ungaro v Matijevic

Alexander James Pty Ltd v Pozetu Pty Ltd (No 2) [2016] NSWCATAP 75

Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165

Bark N Purr Pets Pty Ltd v Moussad [2024] NSWCATAP 201

Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29

Brahmbhatt v Osorio [2023] NSWCATAP 188

Candy Events Pty Ltd v Thrain Pty Ltd t/as Digital Solutions Group [2025] NSWCATAP 164

Collins v Urban [2014] NSWCATAP 17

Cominos v Di Rico [2016] NSWCATAP 5

Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30

Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81

Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109

Dhorajiwala PCT Pty Ltd v Peacock [2022] NSWCATAP 313

Donohoe v Albulario [2025] NSWSC 9

Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249

eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94

FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127

Grasso v The Owners-Strata Plan No 52399 [2022] NSWCATAP 91

Hunter Homes Pty Ltd v Layzell [2023] NSWCATAP 209

Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120

Oshlack v Richmond River City Council [1998] HCA 11; (1998) 193 CLR 72

Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39

The Owners - Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273

Udy v Barton [2025] NSWCATAP 117

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Yuen v Thom [2016] NSWCATAP 243

The Owners - Strata Plan No 2635 (Second Respondent)

1. This is an appeal by Ms Candice Ungaro and her partner Mr David Batista (the Appellants) against orders made by the Tribunal in the Consumer and Commercial Division (the Tribunal below). The Respondents are Mr Patrick Matijevic (the First Respondent) and The Owners - Strata Plan No 2635 (the Second Respondent).
2. The Tribunal below made orders under the Strata Schemes Management Act 2015 (NSW) (SSM Act) aimed at resolving a dispute between the First Respondent and the Appellants concerning the parking and standing of the Appellants' utility vehicle (the Appellants' ute) on the common property of a strata scheme in Bexley NSW. The Appellants and the First Respondent own, and reside in, different lots of the strata scheme. The Second Respondent is the owners corporation for the scheme.
3. The Tribunal below made orders that preclude the Second Respondent from granting approval for the parking or standing of utility vehicles on the common property. In addition, the orders limit approvals to the parking or standing of motor vehicles termed "sedan vehicles". The terms "utility vehicle" and "sedan vehicle" are not defined by the orders.
4. The Appellants contend that the Tribunal below made an appealable error by imposing a blanket prohibition on granting approvals for the parking or standing of utility vehicles and by limiting approvals to sedan vehicles. We agree.
5. In our view, the appeal should be allowed and the orders of the Tribunal below must be varied to permit the Second Respondent to grant approvals for the parking or standing of motor vehicles on the common property, regardless of their classification, in a way that does not obstruct the use of the common property by the residents of the strata scheme.

1. The dispute between the Appellants and the First Respondent concerning the way in which the Appellants have been parking and standing the Appellants' ute has spanned several years.
2. The First Respondent contends that the Appellants' ute has regularly been parked or left unattended in a way that obstructs his access to the common property of their strata scheme and his garage.
3. By-Law 2 for the strata scheme provides as follows:

An owner or occupier of a lot must not park or stand any motor or other vehicle on common property except with the written approval of the owners corporation.

1. In mid-2024, the Second Respondent, through its strata committee, purported to give approval pursuant to this By-law for lot owners and tenants to park in front of their garages.
2. The First Respondent lodged an application with the Tribunal in September 2024 under the SSM Act seeking an order rescinding the approval so that all owners and tenants would be required to park in their garages. This application, which was determined by the Tribunal below on 11 March 2025, gave rise to this appeal. The orders and the reasoning of the Tribunal are set out below.
3. This appeal against those orders was lodged on 24 March 2025. The notice of appeal originally named Mr Batista (who appears to be principally responsible for the Appellants' ute) as a respondent, presumably because he was a respondent in the proceedings before the Tribunal below. A differently constituted Appeal Panel made an order on 23 April 2025 removing Mr Batista as a respondent and adding him as an appellant.

1. Section 135(1) of the SSM Act provides that the by-laws for a strata scheme bind the owners corporation and the owners of lots in the strata scheme.
2. Section 146(1) of the SSM Act enables the owners corporation for a strata scheme to give a notice to the owner or occupier of a lot in the scheme requiring the owner or occupier to comply with a specified by-law if the owners corporation is satisfied that the owner or occupier has contravened the by-law. A notice may be given only if a resolution approving the issue of the notice, or the issue of notices for the type of contravention concerned, has first been passed by the owners corporation at a general meeting or by the strata committee of the owners corporation: SSM Act, s 146(3). A failure to comply with a notice may make the owner or occupier to whom it is issued liable to a monetary penalty ordered by the Tribunal: SSM Act, s 147.
3. The Tribunal is given wide powers to settle complaints and disputes arising in strata schemes by s 232(1) and (2) of the SSM Act, which provide as follows:

232 Orders to settle disputes or rectify complaints

(1) Orders relating to complaints and disputes

The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following -

(a) the operation, administration or management of a strata scheme under this Act,

(b) an agreement authorised or required to be entered into under this Act,

(c) an agreement appointing a strata managing agent or a building manager,

(d) an agreement between the owners corporation and an owner, mortgagee or covenant chargee of a lot in a strata scheme that relates to the scheme or a matter arising under the scheme,

(e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,

(f) an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act.

(2) Failure to exercise a function

For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if -

(a) it decides not to exercise the function, or

(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.

1. The Tribunal below purported to make its orders pursuant to the power conferred by s 232(1)(a) for the Tribunal to make orders to settle a dispute or complaint about the operation, administration, and management of a strata scheme.
2. Section 29(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that the Tribunal has general jurisdiction over a matter if:

(1) legislation (other than the NCAT Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter; and

(2) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.

1. The matter in dispute in this appeal falls within the general jurisdiction of the Tribunal because it concerns an application made under the SSM Act for the exercise of functions under that Act and the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal. Consequently, the orders made by the Tribunal below determining the matter were general decisions: NCAT Act, s 29(3).
2. As costs were in issue before the Tribunal (and are also in issue in this appeal), it is useful to set out the provisions of s 60 of the NCAT Act:

60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party's own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following -

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter that the Tribunal considers relevant.

(4) If costs are to be awarded by the Tribunal, the Tribunal may -

(a) determine by whom and to what extent costs are to be paid, and

(b) 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.

costs includes -

(a) the costs of, or incidental to, proceedings in the Tribunal, and

(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

1. There is no suggestion that r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) displaced the operation of s 60 of the NCAT Act in relation to awarding of costs in the proceedings before the Tribunal below. There is also no suggestion that r 38A of the NCAT Rules displaces s 60 in its application to costs in this appeal.

1. Other than with the prior written approval of the first respondent, The Owners - Strata Plan No 2635 (Owners Corporation), the second and third respondents, Candice Ungaro, and David Batista, are to comply with By-Law 2 of the strata scheme's By-Laws by not parking or standing a motor vehicle, which must be a sedan vehicle and not a utility vehicle, on common property.

2. Each Lot owner of the strata scheme, including the second and third respondents, may apply to the Owners Corporation for the first respondent's approval in writing to park or stand a motor vehicle, which must be a sedan vehicle and not a utility vehicle, immediately in front of that Lot owner's garage.

3. The Owners Corporation is to make its approval under By-Law 2, if given, subject to such terms and conditions as it considers appropriate to ensure that the Lot owner's vehicle, when it is parked or standing immediately in front of that Lot owner's garage, does not impede the flow of traffic or otherwise block the access of other vehicles to the common driveway areas.

4. If there is non-compliance with the said terms and conditions, the Owners Corporation is to take all reasonable steps as are appropriate in the circumstances to enforce By-Law 2 of the strata scheme's By-Laws, including (if necessary) action in the Tribunal after service of a notice under s 146 of the Strata Schemes Management Act 2013 NSW, and evidence of continuing non-compliance by a Lot owner.

5. The Secretary of the Owners Corporation is directed to send a copy of these orders to all Lot owners, within 14 days of the date of these orders.

6. No order as to costs, with the intent each party is to bear their own costs of the proceeding.

1. In making these orders, the Tribunal reasoned as follows:

(1) The Tribunal was satisfied it had jurisdiction to hear and determine the application under the SSM Act. It was also satisfied that this was a case where the Tribunal should exercise its discretion under s 232 of the SSM Act to make orders to settle a dispute or complaint about the operation, administration, and management of a strata scheme.

(2) The Tribunal understood the real issue to be the operation of By-Law 2 of the scheme's by-laws. Despite the First Respondent's submissions to the contrary, the Tribunal did not consider the By-Law to be, in and of itself, unjust, or even harsh, unconscionable or oppressive.

(3) The Tribunal agreed with the parties that the voting for the approval under By-Law 2 had been flawed and a new vote was required.

(4) The Tribunal did not accept the First Respondent's contention that the Second Respondent can never, because of the impracticality of doing so, give its prior written approval for a lot owner or occupier to park or stand a vehicle on common property. The Tribunal gave the following reasons for rejecting this contention:

(a) The contention is inconsistent with the language of By-law 2, which clearly contemplates parking or standing of vehicles may occur on the scheme's common property provided it happens with the Second Respondent's prior approval in writing.

(b) The available evidence (including photographs) supports a finding that there is sufficient space between the edge of the retaining wall to the garage doors for a sedan vehicle to be parked or stood in front of a garage and that this can be done, without unreasonably impeding the use of the common driveway areas by others. The Tribunal accepted Ms Ungaro's evidence that the distance between the wall and the garage doors exceeds 10 metres.

(c) The Tribunal accepted that there is a demand generally within the strata scheme for all lot owners to park on common property but within reasonable terms and conditions. The Tribunal also accepted that: (1) all lot owners from time to time use the space immediately in front of their garages to park vehicles; (2) there are no designated visitor car spaces; and (3) parking in the outside street can be difficult at times.

(d) While the Tribunal accepted a utility vehicle "may be" too long to park outside a garage door, the Tribunal was nevertheless satisfied that a sedan vehicle can, with strict conditions of approval, be kept outside a garage door without impeding reasonable access to the common driveway areas.

(e) Accordingly, the Tribunal was satisfied that orders could be made to regulate the operation of car parking on the strata scheme as per the terms of By-Law 2. The Tribunal said that the orders it made reflected its findings concerning parking in the strata scheme.

(5) In relation to the First Respondent's application for costs, the Tribunal found that there were no special circumstances to warrant a departure from the usual position that each party is to bear their own costs of the proceedings.

1. Section 80 of the NCAT Act permits a party to proceedings in which the Tribunal makes an internally appealable decision to appeal the decision to an Appeal Panel. A general decision of the Tribunal is an internally appealable decision: NCAT Act, s 32(1)(a) and (4). As the orders made by the Tribunal are general decisions as we noted above, it follows that the orders are internally appealable decisions.
2. It is important to emphasis, as we did at the appeal hearing, that an appeal is not simply an opportunity for a losing party to rerun its case at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
3. The role of an Appeal Panel when determining an internal appeal is limited to remedying appealable errors, if there are any, made by the Tribunal at first instance rather than to reconsider the matter afresh. As the Appeal Panel said in Brahmbhatt v Osorio [2023] NSWCATAP 188 at [28]:

"[It] is not sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome: an 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."

1. An internal appeal is by way of rehearing except where an Appeal Panel decides under s 80(3) of the NCAT Act that the grounds for the appeal warrant a new hearing: Yuen v Thom [2016] NSWCATAP 243 at [20]. An appeal by way of a rehearing requires the Appeal Panel to determine, based on the material before the Tribunal below, whether the orders under appeal are the result of some legal, factual or discretionary error and, in some cases, the Appeal Panel has power to receive additional evidence: Hunter Homes Pty Ltd v Layzell [2023] NSWCATAP 209 at [48]. However, this does not call for a fresh hearing by the Appeal Panel and the Panel does not need to hear witnesses again: Hunter Homes at [48].
2. Section 80(2)(b) of the NCAT Act makes it clear that the appealable grounds for an internal appeal are limited. It provides that there is an appeal as of right on questions of law for appeals against internally reviewable decisions that are not interlocutory decisions. However, an appeal on any other grounds requires leave (that is, permission) from the Appeal Panel.
3. The Appeal Panel in Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30 (White) at [21]-[23] stated the following principles concerning the identifications of questions of law for the purposes of internal appeals:

"21 There are several important cases relevant to the construction of s 80 of the NCAT Act. These were recently referred to in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25].

22 The Appeal Panel there said, inter alia, that:

(1) Absent leave to appeal, the question of law is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Medical Council of New South Wales v Mooney [2024] NSWCA 180 (Mooney) at [97].

(2) The question of law should be articulated with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Kudrynski v Orange City Council [2024] NSWCA 33 at [48], Mooney at [97], Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [28].

(3) A question of law means a pure question of law: Wilson v Chan & Naylor Parramatta Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11].

(4) A 'pure question of law' does not depend on facts not found: Orr v Cobar Management Pty Ltd [2020] NSWCCA 2020 at [48] and [109].

(5) A mixed question of fact and law is not a question of law: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWCA 734 at [39].

(6) An appeal is 'on' any question of law: s 80(2) of the NCAT Act. The question of law must not be hypothetical or arid: Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353-354; [1990] HCA 33.

(7) An appeal is against orders and not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34], Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259]. Therefore, the question of law must be capable of affecting the orders the subject of the appeal.

23 Recently in Donohoe v Albulario [2025] NSWSC 9, Basten AJ identified that when a question of law arises as to whether proceedings were procedurally fair it may be appropriate and necessary, on appeal, to make findings about what occurred at the hearing. His Honour noted at [33] (footnotes omitted):

'To the extent that there is a fact/law dichotomy, the facts which are not to be reviewed by the appeal court dealing with a question of law are the facts relevant to the matter in dispute. There is a categorical distinction between the facts in dispute (what part of the building was completed?) and facts relating to the composition or conduct of the Tribunal.' "

1. An example of a question of law that appears to us to be presently relevant is whether there has been a material denial of procedural fairness by the Tribunal at first instance: FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127 at [83]−[84]. A denial of procedural fairness includes a failure by the Tribunal to respond to substantial, clearly articulated arguments based on established facts: Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [32](4). Such a failure may also constitute the legal error of constructively failing to exercise jurisdiction: Candy Events Pty Ltd v Thrain Pty Ltd t/as Digital Solutions Group [2025] NSWCATAP 164 at [46]; Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]-[12] and [413].
2. The passage from White quoted above refers to the need for a question of law to be "pure". A question is a "pure" question of law if its answer does not require the Appeal Panel to resolve disputed facts: Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109 (Damico) at [43]. However, as Basten AJ noted in Donohoe v Albulario [2025] NSWSC 9 at [33], the need for purity does not prevent an Appeal Panel from making necessary findings of fact concerning whether a party to proceedings before the Tribunal at first instance has been denied procedural fairness.
3. If an appeal is against a decision of the Tribunal in the Consumer and Commercial Division on a ground requiring leave to appeal, an Appeal Panel may grant leave in limited circumstances. Clause 12(1) of Sch 4 to the NCAT Act provides that an Appeal Panel may grant leave to appeal only if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because:

(1) the decision under appeal was not fair and equitable (see cl 12(1)(a)); or

(2) the decision under appeal was against the weight of evidence (see cl 12(1)(b)); 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) (see cl 12(1)(c)).

1. The introductory words to cl 12(1) require the Appeal Panel to be satisfied that the appellant "may have suffered a substantial miscarriage of justice" because of one of the circumstances mentioned in cl 12(1)(a), (b) or (c). There is a substantial miscarriage of justice if there is a "significant possibility" or "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance mentioned in cl 12(1)(a) or (b) not occurred or if the fresh evidence under 12(1)(c) had been before the Tribunal at first instance: Collins v Urban [2014] NSWCATAP 17 (Collins) at [76].
2. In Collins at [77](1), the Appeal Panel said that, without being exhaustive, a decision of the Tribunal will not be fair and equitable if there has been a denial of procedural fairness. In a similar vein, the Appeal Panel in Dhorajiwala PCT Pty Ltd v Peacock [2022] NSWCATAP 313 at [39] said that "whether a decision was not fair and equitable will involve a consideration of whether there has been an unfairness in the way the proceedings have been conducted or some other denial of procedural fairness".
3. There is some danger in confining "not fair and equitable" to denials of procedural fairness. This is because, as we have noted above, whether there has been a material denial of procedural fairness raises a question of law for which leave to appeal is not required. Limiting "not fair and equitable" to denials of procedural fairness would effectively leave cl 12(1)(a) of Sch 4 to the NCAT Act with no work to do. Accordingly, in our view what constitutes unfairness and inequity should not be read narrowly. This suggest that there may well be cases where a decision of the Tribunal is not fair and equitable even if procedural fairness has been afforded. It may include circumstances where the decision, or the decision-making process, of the Tribunal might reasonably be considered to result in unfairness and inequity to one or more of the parties.
4. A decision will be against the weight of evidence if "the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach": Collins at [77](2).
5. Even if there is a substantial miscarriage of justice because of one of the circumstances mentioned in cl 12(1)(a), (b) or (c), this merely enlivens the discretion to grant leave. The Appeal Panel must still decide whether it is appropriate to exercise the discretion: Bark N Purr Pets Pty Ltd v Moussad [2024] NSWCATAP 201 at [25]. The relevant principles to be applied in deciding whether to exercise the discretion were stated in Collins at [84]:

"84 The general principles derived from these cases can be summarised as follows:

(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) 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,

BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];"

1. In determining an internal appeal, s 81(1) of the NCAT Act provides that the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following:

(1) the appeal to be allowed or dismissed;

(2) the decision under appeal to be confirmed, affirmed or varied;

(3) the decision under appeal to be quashed or set aside;

(4) the decision under appeal to be quashed or set aside and for another decision to be substituted for it;

(5) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.

1. When confirming, affirming or varying, or making a decision in substitution for, a decision under appeal, s 81(2) provides that the Appeal Panel may exercise all the functions that are conferred or imposed by the NCAT Act or other legislation on the Tribunal at first instance and may exercise those functions on grounds other than those relied upon at first instance.

1. Subject to the exception noted below, the Appeal Panel has had regard to the following in determining this appeal:

(1) The reasons given by the Tribunal below on 11 March 2025 for the orders it made.

(2) The notice of appeal dated 24 March 2025.

(3) The reply to appeal dated 18 April 2025.

(4) The bundle of documents headed "Statement of Candice Ungaro and Davide Batista (Appellants)", which includes written submissions, lodged by the Appellants on 5 May 2025 (Appellants' Initial Document Bundle).

(5) The bundle of documents headed "Response to Appellant by Patrick Matijevic", which includes written submissions, lodged by the First Respondent on 20 May 2025 (First Respondent's Document Bundle).

(6) The bundle of documents headed "Reply to Mr Matijevic (Respondent)" lodged by the Appellants on 26 May 2025 in reply to the First Respondent's Document Bundle (Appellants' Reply Document Bundle).

(7) The oral submissions of the parties at the appeal hearing on 10 July 2025.

1. At the appeal hearing, both parties sought leave to rely on documents contained in their respective bundles that were not before the Tribunal below.

1. The Appellants' Initial Document Bundle includes certain documents concerning a resolution passed on 11 April 2025 after the Tribunal's orders at an extraordinary general meeting of the Second Respondent (the April 2025 parking resolution). The resolution concerns parking on the common property of the strata scheme.
2. We granted leave at the appeal hearing for the Appellants to rely on these documents because they were not available at the time of the hearing before the Tribunal below and we considered them relevant to the question of what remedy, if any, should be provided if the appeal were to be successful.
3. We do not understand the First Respondent to dispute that the documents accurately reflect the April 2025 parking resolution, although he questions their relevance to the appeal.
4. The April 2025 parking resolution granted approval for all lot owners to park a motor vehicle outside their garages on common property subject to specified conditions and guidelines.
5. The conditions are:

(1) Each lot owner must obtain prior written approval from the Second Respondent before parking outside their garage.

(2) Utility vehicles must not be parked because of the orders of the Tribunal below.

(3) Vehicles must be parked in a manner that does not impede the flow of traffic or restrict access to any other lot owner's garage or common property driveway areas.

(4) The Second Respondent reserves the right to revoke parking approval if a lot owner fails to comply with these conditions.

(1) Vehicles may be parked within 5.5 metres of the parking space measured from the closed garage door.

(2) Parked or unattended vehicles must leave at least 3 metres of clear space behind them for vehicle movement and be parked close to the garage door.

1. We note that the April 2025 parking resolution is not limited to parking sedan vehicles despite the terms of the orders of the Tribunal below.

1. The First Respondent's Document Bundle includes a USB stick with videos that the First Respondent says depict the way in which the Appellants have parked the Appellants' ute on the common property of the strata scheme.
2. The First Respondent informed us at the appeal hearing that the Tribunal below had refused to admit the videos, although it appears that the Tribunal did take into account screen shots from those videos.
3. We refused leave at the appeal hearing for the First Respondent to rely on the videos because the Tribunal below had refused to admit the videos and the First Respondent had not appealed against that refusal.

1. The notice of appeal states the following appeal ground:

"The reasoning for Order 2 (as stated in paragraph 10 of the decision) suggests that a utility vehicle may be too long to park outside a garage door without obstructing access. However the evidence presented clearly demonstrates that this is not the case. The Tribunal failed to properly consider the available evidence including photographs and measurements which clearly show a utility vehicle can fit without impacting access to others. As a result, the order is based on incorrect assumptions and imposes an unreasonable and unnecessary restriction on us a utility vehicle owners."

1. The notice of appeal seeks the following remedy:

I request that Order 2 be amended to allow each lot owner to apply for permission from the owners corporation to stand or park a motor vehicle immediately in front of their garage without any restriction on vehicle type.

Any restriction on vehicle type should be at the discretion of the Owner's Corporation, rather than imposed by the Tribunal. The Owners Corporation should retain authority to assess and approve parking applications on a case-by-case basis, considering factors such as vehicle size, safety and access requirements.

1. The notice of appeal also seeks an order for costs in the appeal on the following basis:

I respectfully request that the Appeal Panel make an order requiring the original applicant, Mr Matijevic, to pay my appeal costs under Section 60 of the Civil and Administrative Tribunal Act 2013 (NSW).

This request is made on the basis that:

1. The appeal was necessary due to unfair and inequitable decision that did not properly consider the evidence

2. The original applicant's claims were unsupported by objective evidence, leading to a ruling that must now be appealed to correct the unfair outcome

3. Significant time and financial resources have been expended in address misleading and unsubstantiated claims made by the original applicant

4. NCAT has the discretion to award costs where proceedings have been unreasonably prolonged or where one party has caused unnecessary expense to another

Given these factors, I submit that it is fair and reasonable for the original applicant to bear the cost associated with this appeal.

1. The Appellants seek leave to appeal to the extent it is required because the decision of the Tribunal below was not fair and equitable and against the weight of evidence.
2. The Appellants say that the decision of the Tribunal below is not fair and equitable because it disproportionately impacts them and places an unnecessary and rigid constraint on the Second Respondent's ability to approve reasonable parking arrangements.
3. The Appellants say the decision of the Tribunal below is against the weight of evidence because the evidence before the Tribunal clearly showed that the Appellants' ute is not too long to be parked outside their garage. They say their ute is comparable in size to a sedan vehicle. Consequently, there was no reasonable basis for the Tribunal to treat each kind of vehicle differently.

1. We note that the Second Respondent has not participated in this appeal despite being notified of the appeal and provided with a reasonably opportunity to participate. Consequently, there is no denial of procedural fairness in determining the appeal despite the Second Respondent's absence: Udy v Barton [2025] NSWCATAP 117 (Udy) at [2]. This is especially the case given that the Appeal Panel has had the benefit of submissions from the First Respondent supporting the decision of the Tribunal below. Even so, we recognise that this does not mean the Second Respondent has waived its right to have the appeal determined according to law; the Appellants must still discharge the burden of establishing an appealable error: Udy at [4].
2. The reply to appeal lodged by the First Respondent states that "[m]ost people agree that a utility is much larger than an average car". It also states that the bigger issue is not the size of the Appellants' ute, but rather the behaviour of the Appellants. The First Respondent opposes the granting of leave to appeal because of the clear evidence before the Tribunal below about what the First Respondent characterises as the "inconsiderate, brazen behaviour of the utility driver". The First Respondent also submits that an award of costs in the appeal should not be made against him in the event that the Appellants are successful in their appeal.

1. The starting point for any internal appeal is identifying whether the appeal grounds relied on by the appellant raise questions of law or require leave. However, the identification of questions of law can often be difficult even for seasoned lawyers.
2. It is for this reason that Appeal Panels have taken a benevolent approach to discerning the appeal grounds of self-represented appellants. In such appeals, the Appeal Panel looks to the substance of the grounds relied on by the appellant to discern whether or not they raise questions of law: Cominos v Di Rico [2016] NSWCATAP 5 at [13]. However, the appeal grounds identified by the Appeal Panel must be reasonably discernible from the material before it rather than the result of an artificial construct imposed on the material by the Panel: Damico at [45].
3. As the Appellants are self-represented, we approach the identification of the appeal grounds with these principles in mind. This involves considering not only the notice of appeal, but also the submissions of both parties.
4. In their written submissions in the Appellants' Initial Document Bundle at para [35], the Appellants point to the following submission of the Second Respondent in the Tribunal below (the size submission):

"The location and layout of the property, garages and parking area are not in dispute. We are providing precise measurements to confirm that there are no access issues for Mr. Matijevic. (See Attachment 1)

The areas of concern behind Lot 6's vehicles measure not less than 4.9 meters, while the space between the corner of Lot 6's vehicles and Lot 5's vehicle measures at least 3.0 meters. The access driveway is 2.35 meters while, which Mr. Matijevic navigates regularly without any issues. Therefore, the larger distances surrounding Lot 6's vehicles do not impede Mr. Matijevic's access, contrary to his claims."

1. We note that Lot 6 is the strata lot of the Appellants, with Lot 5 being an adjoining strata lot. The strata lot of the First Respondent is Lot 8. As we understand it (and as the Tribunal below found), the double garages for Lots 5, 6, 7, and 8 face a retaining wall with at least a 2.3 metres wide common driveway providing access to each garage.
2. We do not understand the First Respondent to dispute that this is the layout of the garages for the lots or that the Second Respondent made the size submission.
3. As mentioned above, whether the Tribunal at first instance has failed to respond to substantial, clearly articulated arguments based on established facts raises a question of law for which leave is not required.
4. The size submission was that there is more than enough space in front of the Appellant's garage to park a vehicle without obstructing the ingress or egress of other vehicles along the common driveway. In substance, the Appellants are contending in this appeal that the Tribunal below failed to deal with the size submission. We consider that this raises a question of law because it raises the question of whether the Tribunal below failed to respond to a substantial, clearly articulated submission.
5. As we have noted above, the Appellants also seek leave to appeal on the basis that the decision of the Tribunal below was either not fair and equitable or against the weight of evidence. As we have decided that the Appellants have raised a question of law, there is no need for a grant of leave for the appeal to proceed. However, if we are wrong about a question of law being raised, we will grant leave to appeal for the reasons given below.

1. The Tribunal below found that "while I accept that a utility vehicle may be too long to park outside a garage door, I am satisfied that a sedan vehicle can, with strict conditions of approval, be kept outside a garage door without impeding reasonable access to the common driveway areas". In doing so, the Tribunal said that "I accept Ms Ungaro's evidence that the distance between the wall and the garage doors exceeds 10 metres". The Tribunal also found that the common driveway was around 2.3 metres. Assuming these findings are correct, it follows that the space for parking in front of a garage without encroaching on the driveway was at least 7.7 metres.
2. However, the Tribunal did not make any findings about the size of the Appellants' ute. Rather, it stated, in blanket terms, that utility vehicles "may be too long" to be parked, but that sedan vehicles were not.
3. The Tribunal provided no guidance as to what it understood either of these kinds of vehicles to mean.
4. We assume, based on the photos of the Appellants' ute before the Tribunal, that the Tribunal intended "utility vehicle" to mean what is colloquially called a "ute". The definition given to the word "ute" by the Macquarie Dictionary (Online edition), under definition 4a of the definition of "utility", is a small truck with an enclosed cabin and a rectangular tray in an integrated layout, designed to be a combination coupé and tray; originally designed for personal travel and for farm use. We also assume that the Tribunal intended "sedan vehicle" to mean what is colloquially called a "sedan". The primary definition given to the word "sedan" by the Macquarie Dictionary (Online edition) is a car with two rows of seating, four or two doors, and a separate boot.
5. The effect of the Tribunal's orders is to prevent the Second Respondent from giving parking approvals for utes and to limit approvals to sedans. The orders result in some counterintuitive (and likely unintended) consequences:

(1) A parking approval is precluded for a ute regardless of its size. Consequently, it would preclude approvals even if a ute is the same, or a smaller size, than an ordinary sedan.

(2) A parking approval would be permitted for a sedan even if it was larger than an ordinary ute.

(3) A parking approval would be precluded for a hatchback because it does not answer the description of a sedan even though hatchbacks are often considerably smaller than an ordinary sedan.

(4) A parking approval would be precluded for a ute regardless of whether it can be parked adjacent to a garage without obstructing other lot owners' access.

1. With respect, excluding utes and limiting parking approvals to sedans makes little sense. It precludes approvals for vehicles that could easily fit within the 7.7 metre parking space between the door of a garage for a lot and the common driveway. In our view, it involves a failure by the Tribunal below to respond to the size submission. This is an error of law.
2. The crucial element of the Appellants' case was, in essence, that provided the parking of a vehicle adjacent to a garage door of the relevant lot did not obstruct the other lot owners, there should be no prohibition imposed by reason of the nature of the vehicle. The Tribunal did not respond to this element of their case.
3. Even if we are wrong about there being an error of law, we think it is appropriate to grant leave to appeal for the following reasons.
4. The imposition of a blanket prohibition on parking approvals for utes and only allowing approvals for sedans is a decision that is not fair and equitable. It discriminates disproportionately against the Appellants by blanket classifications that do not have due regard to vehicle size and available parking space.
5. The imposition of a blanket prohibition is also against the weight of evidence. The Tribunal found (and we agree) that there is sufficient parking space if parking is subject to reasonable constraints. It is possible for the Second Respondent to articulate and impose reasonable parking constraints. The April 2025 parking resolution is an obvious attempt to do so. Having examined the material before the Tribunal below, including the diagrams with measurements concerning the parking spaces and driveway, it is clear the preponderance of evidence favours a finding that there is sufficient space for parking motor vehicles (including the Appellants' ute) without obstructing traffic such that it can be said that the Tribunal's decision was not one that a reasonable tribunal member could reach.
6. The First Respondent places great store on his claim that the Appellants regularly fail to park within the available parking space. Even if this is true, it is not evidence that there is insufficient space to park. The failure of the Appellants to park appropriately is a different issue to whether vehicles are capable of being parked with appropriate parking restrictions. It is possible for the Second Respondent to give parking approvals with appropriate parking restrictions, as evidenced by the April 2025 parking resolution. The Second Respondent is under a duty to enforce those restrictions. A failure to enforce the restrictions might then give rise to action being taken against the Second Respondent.
7. In our view, there is a "significant possibility" or "chance which was fairly open" that a different and more favourable result would have been achieved for the Appellants had the errors not occurred. The favourable result was that the Appellants would have been permitted to park or stand the Appellants' ute with approval subject to appropriate parking restrictions rather than being precluded from doing so altogether.
8. As a result, a discretion to grant leave to appeal is available for us to exercise if leave is required.
9. We consider that the discretion to grant leave should be exercised in favour of the Appellants to the extent it is necessary. This is because (to mirror the language of Collins at [84](2)(c)) there is 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.
10. It follows that the appeal must be allowed.

1. As we have decided that the appeal should be allowed and, if leave to appeal is required, leave should be granted, we must now turn to the issue of the appropriate remedy.
2. Orders 1 and 2 of the Tribunal below seek to limit the power of the Second Respondent to give approvals for the parking and standing of motor vehicles, both by the Appellants and lot owners generally, to "a motor vehicle, which must be a sedan vehicle and not a utility vehicle".
3. The notice of appeal is expressed to be an appeal against order 2. At the appeal hearing, the Appeal Panel raised with the parties whether both orders 1 and 2 needed to be varied if the appeal was successful. The Appellants submitted that both orders should be varied to remove the common exclusion and limitation. We agree and will make an order to that effect.
4. The variation of orders 1 and 2 made by the Tribunal below will enable the Second Respondent to grant approvals without the need to cleave to arbitrary vehicle classifications.
5. Order 3, which was not appealed and we leave undisturbed, will ensure that the Second Respondent continues to grant approvals only for parking and standing that does not impede the flow of traffic or otherwise block the access of other vehicles to the common driveway areas. As we have noted above, the April 2025 parking resolution regulates parking by reference to vehicle size and positioning. However, it excludes "utility vehicles" pursuant to the orders of the Tribunal below. The Second Respondent will not be bound to continue with the exclusion for any further approvals it gives.
6. Order 4, which was also not appealed and we also leave undisturbed, will ensure that the Second Respondent takes reasonable steps to ensure that there is compliance with approvals it gives under By-law 2.

1. The Appellants have applied for their costs in the appeal if their appeal succeeds.
2. The Appellants ask for $506, which is the amount of the fee they paid for the lodgment of the appeal. The amount claimed is consistent with the principle that self-represented parties who are awarded costs are generally limited to recovering costs for their actual disbursements and cannot recover recompense for value of their time spent in litigation: Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29.
3. Section 60 of the NCAT Act was set out earlier in these reasons. Generally, the section requires the parties to proceedings before the Tribunal to bear their own costs. The Tribunal may award costs "only if it is satisfied that there are special circumstances warranting an award of costs".
4. The following general principles apply to the determining whether to award costs under s 60:

(1) Circumstances are special circumstances if they are out of the ordinary, but they do not need to be extraordinary or exceptional: Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249 at [9]; Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60].

(2) Whether there are special circumstances involves a value judgment requiring a comparison between what is not "special" and what is "special": Alexander James Pty Ltd v Pozetu Pty Ltd (No 2) [2016] NSWCATAP 75 at [14].

(3) The party asserting that there are special circumstances must prove that special circumstances exist: The Owners - Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 (B & G Trading) at [14].

(4) Even if the Tribunal is satisfied that there are special circumstances, the presence of these circumstances merely enlivens the discretion to award costs but does not mandate an award of costs: Al-Aaraj v Commissioner of Police, NSW Police Force (No 2) [2025] NSWCATAP 166 at [40]. The Tribunal must still be satisfied they are circumstances "warranting an award of costs": B & G Trading at [12].

(5) If the discretion is enlivened, it must be exercised judicially and not capriciously: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [37]; Oshlack v Richmond River City Council [1998] HCA 11; (1998) 193 CLR 72 at 81.

(6) An award of costs is intended to be compensatory and not punitive: Grasso v The Owners-Strata Plan No 52399 [2022] NSWCATAP 91 at [12](6).

1. The Appellants point to the following in support of their application for costs:

(1) The appeal was necessary due to an unfair and inequitable decision that did not properly consider the evidence.

(2) The First Respondent's claims were unsupported by objective evidence, leading to a ruling that must now be appealed to correct the unfair outcome.

(3) Significant time and financial resources have been expended in addressing the misleading and unsubstantiated claims made by the First Respondent.

(4) The Appeal Panel has the discretion to award costs where proceedings have been unreasonably prolonged or where one party has caused unnecessary expense to another party.

1. The First Respondent submits that costs should not be awarded against him for the following reasons:

(1) The decision under appeal was made by the Tribunal below and not by him.

(2) The evidence submitted by him was "pretty clear". He believes his photos are very good evidence and that his commentary is also consistent throughout, unlike the Appellants'.

(3) He says he has also expended significant time and financial resources as well "due to inconsiderate, brazen parking and behavior" of the Appellants. Those time and financial resources can easily be offset.

(4) Nothing he did for the original application was unnecessary because the Appellants had been breaching the by-laws and blocking his access on several occasions, did not want to move, threatened him with physical violence in order to have their way and made false reports to police. He contends that he tried to rectify the issue by speaking to the occupiers, by emailing the strata managers and all the lot owners and by reporting it to the police. However, he says nothing substantial was done. Also, mediation failed. It was therefore necessary for him to apply to the Tribunal for assistance.

1. The Second Respondent, as we have mentioned, did not appear. In any event, the Appellants do not seek costs against it.
2. The first step in deciding whether costs should be awarded is determining whether there are special circumstances warranting an award of costs.
3. Section 60(3) sets out a non-exhaustive list of considerations to which the Tribunal may have regard in making this determination. These considerations, although not exhaustive, provide some guidance about when circumstances can be regarded as "special". The focus of the considerations is the nature and impact of the conduct of the party against whom costs are claimed. The considerations include:

(1) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings;

(2) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings;

(3) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

(4) the nature and complexity of the proceedings;

(5) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance.

1. We are not satisfied, having regard to these circumstances, that there are special circumstances to take this appeal outside of the ordinary.
2. Although it appears that the First Respondent has been zealous (perhaps even overzealous) in pursuing and defending his case against the Appellants, zealousness is not of itself a circumstance that takes proceedings outside of the ordinary. In addition, the fact that significant time and resources may have been expended by the Appellants is insufficient of itself to warrant an award of costs unless the conduct of the First Respondent in defending the decision of the Tribunal below was unreasonable.
3. It was not unreasonable for the First Respondent to seek to defend on appeal the decision of the Tribunal below, which was in his favour. We have allowed the appeal in relation to orders 1 and 2 of the Tribunal below. However, the orders have only been varied and not set aside. Consequently, the First Respondent retains the benefit of the orders to the extent that they require parking approval for the Appellants' ute. In addition, orders 3 and 4 have been left undisturbed. In these circumstances, it cannot be said that the First Respondent's case had no tenable basis. As the First Respondent submits, he should not be penalised for errors made by the Tribunal below concerning the exclusion of utility vehicles.
4. As we are not satisfied that there are special circumstances warranting an award of costs, it follows that we have no discretion to award costs. The Appellants' application for their costs in the appeal must therefore be refused.

(1) Leave to appeal is granted to the extent it is necessary.

(2) The appeal is allowed in relation to orders 1 and 2 made by the Tribunal on 11 March 2025 in proceedings 2024/00325944.

(3) Orders 1 and 2 are varied by omitting ", which must be a sedan vehicle and not a utility vehicle,".

(4) The Appellants' application for their costs in the appeal is refused.

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.