Walters v Watkins

1. On appeal, the appellant submits that the Tribunal should have made the following order:

The respondents are not to cause or permit a motor vehicle to park in front of the entrance to the garage for Lot 3.

1. For the following reasons, we have decided to order that:

(1) the application for leave to extend the time for the filing of the Notice of Appeal is granted;

(2) the application for leave to appeal is dismissed;

(3) the appeal is otherwise dismissed.

1. By Amended Notice of Appeal filed 5 February 2025, the appellant states her grounds of appeal as:

There is no turning bay beyond the entrance to the garage for Lot 4. The area beyond the garage for Lot 4 is grassed private property and is not designed for or approved for use by vehicles. As outlined in the materials before the Tribunal, the turning bay is between Lot 2 and Lot 3. The apparent mistake or misunderstanding of the layout at [XXXX] Wollongbar NSW 2477 may have resulted in a different decision being made relating to the vehicle parking in front of Lot 3.

Although a formal access request was submitted, the additional information now available was not provided by Ballina Shire Council. The additional information indicates that the Body Corporate was aware that parking on common areas was not acceptable prior to approving common area parking outside council's requirements on at least two occasions, in an apparent attempt to avoid compliance. Approval from an owners corporation cannot circumvent council requirements or restrictions.

1. The Notice of Appeal then goes to state that the appellant seeks leave to appeal, as the Primary Decision was not fair and equitable and that there is now significant new evidence available that was not reasonably available at the time of the hearing. We shall discuss those matters later in these reasons.
2. Finally, the Notice of Appeal also states that an extension of time for filing the Notice of Appeal is not sought. We consider that to be an error. Again, that issue will be considered below.

Other materials accompanying the Notice of Appeal

1. Accompanying the Notice of Appeal were a further 95 pages of material (Appeal Bundle). These documents comprised, in summary, the Primary Decision; 27 pages of photographs;[1] a diagram of the 4 lots and the common property;[2] a Building Application Under Ordinance No 70 dated 10 July 1975;[3] approximately 46 pages of materials concerning the registration of the strata plan and construction of buildings comprising the strata scheme;[4] and approximately 11 pages of materials dealing with an development application in relation to an alternative car parking layout options for the strata scheme.[5]
2. We note that that development application was not pursued, and was withdrawn by a Mr Glen Camps on or about 8 July 2010.

1. On 26 March 2025, the appellant filed "two additional short CCTV files" which, it was said, "speak for themselves".
2. Accompanying the USB drive containing the CCTV files are submissions which deal with the following topics: why the materials filed on 26 March 2025 were filed late; the appeal itself; and a response to the submissions of the third respondent Mr Watkins.

1. On 3 April 2025, the appellant filed a sound recording of the proceedings of the Tribunal on 13 December 2024.
2. No transcript of the hearing was filed, despite directions of the Appeal Panel to do so if a party wished to rely on what had happened at the Tribunal hearing at the appeal hearing.
3. At a directions hearing on 21 February 2025, the appellant was directed to lodge with the Appeal Registry and to give to the respondent an agreed bundle of documents to be relied on in the appeal, including the relevant documents that were before the Tribunal at first instance. Apart from the aerial photograph at p 30 of the Appeal Bundle, the documents that were before the Tribunal were not provided to us by the appellant.

1. We note that there are four respondents to the appeal.
2. The first and second respondents are the owners of Lot 3. The third respondent is the owner of Lot 2. The fourth respondent is the owner of Lot 1.
3. Only the owners of Lot 3 filed any Reply to Appeal, submissions or other materials in accordance with the Appeal Panel's directions.
4. We note that:

(1) the fourth respondent filed no materials, but did attend the appeal hearing. He indicated that he wished Mr Watkins to represent him at the appeal. While Mr Watkins opposed this, we allowed Mr Watkins to do so;

(2) the third respondent filed no materials and did not participate in the appeal.

1. There were two Replies to Appeal filed, respectively on 21 February 2025 and 10 April 2025. The owners of Lot 3 confirmed at the appeal hearing that while the Reply of 10 April 2025 superceded the Reply to Appeal of 21 February 2025, in large part, there were some differences in both the submissions and the materials attached to each Reply to Appeal.
2. Accompanying the Reply to Appeal of 10 April 2025 were 40 pages of materials. These materials included five pages of submissions;[6] photographs;[7] an undated statement of Mr Glen Camps;[8] minutes of various annual general meetings of the owners corporation;[9] a document titled "Excerpt from Engineering Guidelines & Dev Standards";[10] a medical certificate relating to the appellant, and her ability to reverse out of her driveway;[11] a document titled "Proof of Reversing Camera Installation On Volvo S40";[12] and 16 correspondence between the parties.[13]
3. Accompanying the Reply to Appeal of 10 April 2025 were 45 pages of materials. The additional materials appeared to be additional photographs.
4. Save for an undated letter of Mr Glen Camps (aka "Dingo") and the minutes of the adjourned annual general meeting of The Owners - Strata Plan 17300 held on 30 June 2024 (Minutes), none of the attached materials were before the Tribunal.
5. Mr Camps is a former owner of Lot 1, and at some point not stated purchased Lot 3, which he sold to the first and third respondents in October 2021. Mr Camps makes unnecessary criticism of the appellant, including accusations about the appellant accusing the first and third respondents of "putting dog poo" in her front yard. Mr Camps does give some evidence about chairing the last extraordinary general meeting of the owners corporation (on a date not stated) at which "we needed to sort out the parking issue". However, as this statement was not referred to in the Primary Decision, it provides no basis on which to found an error in the Primary Decision, unless the appellant submitted that the Primary Decision was against the weight of the evidence, which she has not.
6. The Minutes relevantly state:

RESOLVED - 30/6/24 That the Owners - Strata Plan 17300 in accordance with Bylaw 2 - Vehicles approves for each owner or occupier to park a motor vehicle on the common property immediately in front of their respective garage.

Explanation: (Jye Watkins & Amy Goeldner - lot 3 owners) - there has been a longstanding informal arrangement whereby all residents have had the opportunity to park a vehicle in front of their respective garage. With the exception of Unit 3 to also park a vehicle in one of the spaces next to Unit 3. The owner of lot 4 requested that this arrangement not continue so we have put this motion forward to allow the Owners Corporation an opportunity to formally vote on the matter. It should be noted that if the motion is approved the Owners Corporation can repeal the decision at a subsequent meeting.

Please note: Majority approval was reached with U1, U2 & U3 accepting for vehicles to be parked on common property in front of their respective garages. With the exception of U3 to also use the bay closest to their unit. Nominated proxy for U4 objected to this arrangement. Please see below discussion points from all parties for context:

Shawn Richey (U2) - Expressed that all owners should be allowed to park in front of their garage. As he uses his own garage for storage purposes and there's no safety risk.

Gary Clarson (U1) - Also agreed with Shawn Richey's points.

Jye Watkins & Amy Goeldner (U3) - Also agreed with Shawn Richey's points. It was also added that this parking arrangement has been a long standing informal arrangement and only not voted upon previously because it was not a contentious issue.

Mark Bailey (Proxy for U4) - Objection detailed below:

• Originally when the DA was submitted it was refused as there was no parking provided for off street parking, in a subsequent lodgement parking was provided and that is how the current garages came to be.

• U4 owner believes owners should park in their garage and the common property not to be used for parking purposes.

• Owners Oppression of minority (U1, U2 & U3 vs U4).

• This situation will affect the value of the properties and could affect sales.

• This could create an aesthetic issue when owners vehicles are parked on common property.

(emphasis added)

1. These resolutions were not referred to by the Tribunal in the Primary Decision

1. There are two preliminary matters to consider.
2. The first preliminary matter is whether the appellant requires an extension of time for filing the Notice of Appeal. As one of the factors to take into account is the strength of the appeal, we shall deal with this issue having considered the merits of the appeal itself.
3. The second preliminary matter is whether any party should be allowed to rely on the material that was not before the Tribunal.
4. We shall deal with that matter immediately.

1. In Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 ('Al-Daouk'), the Appeal Panel stated:

23 ... the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud.

24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).

25 Further, to grant leave simply on the basis of whether a party had been unsuccessful in their attempt to obtain evidence would allow any party who has a personal excuse for not providing evidence otherwise reasonably available an opportunity to seek leave to appeal any decision of the Tribunal. Such an outcome would not promote finalisation of the real issues in dispute in a just, quick and cheap manner, as an opposing party would be liable to face a successful appeal and a rehearing merely because of the personal circumstances of the person who failed to procure necessary evidence.

26 In our opinion the intent of cl 12 of Sch 4 of the NCAT Act is to impose additional limitations on a party's entitlement to seek leave to appeal under s 80(2) of the NCAT Act from a decision of the Consumer and Commercial Division.

(emphasis added)

1. The additional material the appellant wishes to rely on are:

(1) the Appeal Bundle, pp 34 - 106; and

(2) the CCTV footage respectively dated 4 March 2025 (1 minute 2 seconds in length) and 19 March 2025 (1 minute 13 seconds in length).

1. In relation to the Appeal Bundle, in the Notice of Appeal, the appellant states:

Following what was stated in the decision of 6 January 2025, further enquiries were made.

A formal access request was previously submitted and council provided what was understood to be all available information. Following the further enquiries since the date of decision, additional information was provided through a conveyancer. This was council material not provided by council.

The material indicates that the Body Corporate was very aware that parking on common areas was not acceptable prior to their approval of common area parking for individual Lot owners outside council's requirements on at least two occasions. This appears to be an attempt to avoid compliance.

Although approving common area parking is permitted under by-law 2, approval from an owners corporation cannot circumvent council requirements or restrictions. It should only ever be used where parking is permitted by council.

To allow a vehicle to park in any common area on this site, more specifically in front of the garage for Lot 3, will result in a continuing nuisance and hazard to an occupant of Lot 4, which may ultimately require council intervention to resolve. Although acknowledging the hindrance caused by a vehicle parking in front of Lot 3, it seems inappropriate to inconvenience one Lot owner by forcing them to reverse when it is not necessary to do so, for the sole selfish benefit of another Lot owner.

1. Those written submissions were amplified in oral submissions of the appellant's solicitor Mr Big Rob. Mr Rob developed at length the difficulties the appellant had had in obtaining what we described as "the Council materials" from sources other than the Ballina Shire Council.

1. On 10 April 2025, the "respondents" (presumably the owners of Lot 3), filed what they described as "additional evidence". This included a "Statement of Position" of the first respondent; a Statement of Position of the former owner of Lot 4, Mr Nathan Wilton; more photographs, and undated statement of Mr Glen Camps. The statement of position of Mr Wilton is in fact a character reference for the owners of Lot 3.

1. At the appeal hearing we refused the tender of all the materials not before the Tribunal, given the long-standing decision of an Appeal Panel in Al-Daouk which has been followed and applied on many occasions. To paraphrase that decision, the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing (Al-Doauk at [27]).
2. As for the Appeal Bundle, and the additional materials in the Replies to Appeal, as there was no probative evidence by way of statutory declaration or affidavit by any party (including in the case of the appellant her solicitor) we cannot be satisfied that that the Al-Daouk test has been satisfied. In any event, we have real doubt that any of the Council evidence, at least in so far as it related to an development application which was later withdrawn, was relevant for the purposes of the appeal.
3. As to CCTV files, we heard no persuasive explanation as to why such footage could not have been taken before the Tribunal hearing.
4. For these reasons, we rejected all the parties' applications for leave to rely on material that was not before the Tribunal at first instance.
5. As to the respondents' additional materials which were not before the Tribunal, Mr Watkins submitted that in part these were a response to the new evidence the appellant sought to rely on. As we have rejected that evidence, there is now no need for the respondents to respond.
6. As for any other additional material of the respondents, applying Al-Daouk, in the absence of any probative evidence, we see no reason why this material should be permitted on appeal.

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 and Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 2042, the Appeal Panel set out a non-exhaustive list of questions of law.
2. We asked Mr Rob, who appeared for the appellant, whether the appellant was submitting that question of law was raised. Mr Rob indicated that the appellant did not raise any question of law on appeal.
3. Accordingly, the appellant needs leave to appeal.

1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because:

(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).

1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84](2) that:

Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) Issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

1. Before considering the grounds of appeal, it is appropriate to briefly summarise the Primary Decision.

1. The appellant claims that the Primary Decision was not fair and equitable because:

The decision is not fair and equitable because it does not appear to address the parking issue at [XXXX] Wollongbar NSW 2477 as seemingly intended.

Order 1 refers to parking in the turning bay beyond the entrance to the garage for Lot 4. There is no turning bay beyond the entrance to the garage for Lot 4. The area beyond the garage for Lot 4 is grassed private property and is not designed for or approved for use by vehicles. The private property area, which is difficult to manoeuvre into, is only used due to the obstruction caused by a vehicle parking in front of the entrance to the garage for Lot 3.

As outlined in the materials before the Tribunal, there is only one turning bay and one visitor parking both located between Lot 2 and Lot 3.

An apparent mistake or misunderstanding of the layout at [XXXX] Wollongbar NSW 2477 may have resulted in order 1 being made as printed. A different decision relating to the vehicle parking in front of Lot 3 may have resulted if there was no apparent mistake or misunderstanding during the hearing.

1. Mr Rob developed the submission that there is no turning bay beyond the entrance to the garage for Lot 4 at length in his oral submissions. However, the difficulty for him, and the challenge for the Appeal Panel, was that the appellant had not, save for one or two exceptions, filed any of the 300 or 400 pages of materials that were apparently before the Tribunal. Those materials included photographs, the strata plan, a building plan, the by-laws before the strata scheme, and Australian/New Zealand Standard AS/NZS 2890.1:2004.[14] The Tribunal Member carefully recorded the evidence that was before him at [6] of the Primary Decision as being in Exhibits A - L for the appellant and Exhibits 1 - 2 for the respondents.
2. We note that the materials before us, and also before the Tribunal, included an aerial picture of the subject lots and common property,[15] and the strata plan attached to the originating application filed 19 May 2024.
3. However, it is quite impossible for us to conclude, especially in the absence of any affidavit or otherwise sworn evidence before the Tribunal that, consistent with Mr Rob's submissions, that there is no turning bay beyond the entrance to the garage for Lot 4. On the contrary, from what we can tell from Image 7, which is the aerial picture which we have referred to, there is in fact a vehicle parked in what may be a turning bay beyond the entrance to the garage for Lot 4. However, it is not appropriate for us to speculate on this issue.
4. In the Notice of Appeal, the appellant submitted that the Tribunal had made an apparent mistake or had misunderstood the layout at the subject property resulting in the Tribunal's formulation of order (1). Without recourse to the evidence that was before the Tribunal, being the documents on which the Tribunal founded its decision, we cannot accept that submission.
5. That being the case, we would not grant leave on this ground of appeal.
6. As for the only other articulated ground of appeal, that being the appellant may have suffered a substantial injustice because significant new material now being available that was not reasonably available at the time of the hearing, as we have rejected that material, we would not grant leave in respect of that ground either.
7. Finally, we reproduced the Minutes above. As noted, they were not referred to by the Tribunal. Nor where they referred to by the parties in their submissions to us. Nevertheless, they appear to be fatal to the appellant's submission that the Tribunal should have ordered the respondents not to cause or permit a motor vehicle to park in front of the entrance to the garage for Lot 3.

1. As noted above, the Notice of Appeal was filed one day late, and thus the appellant needs an extension of time in which to file the Notice of Appeal.
2. Unless the Tribunal grants an extension under s 41 of the NCAT Act, an internal appeal such as this one must be lodged, within 14 days from the day on which the Appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later): see Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4)(b).
3. The first, third and fourth respondents opposed the time for filing the Notice of Appeal being extended.
4. The relevant principles which generally inform the exercise of our discretion to extend time were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. Relevant factors to consider include length of the delay, the reasons for the delay, whether the appellant has a fairly arguable case and the extent of any prejudice suffered by the Respondent. In this respect we note that in Gallo v Dawson [1990] HCA 30 McHugh J stated [2]:

When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospect of the applicant succeeding in the appeal.

1. The length of delay was minimal, being one day. This factor favours an extension of time.
2. The reasons for delay were explained by Mr Rob at length, in unsworn evidence from the Bar Table. The effect of his evidence was that he had misunderstood filing practices for appeals, being under the impression that the Notice of Appeal could have been filed electronically. We do not consider that this factor favours an extension of time.
3. We consider that the appellant did have an arguable case, clearly the case was not hopeless. This factor favours an extension of time. The only issue was that the appellant did not file the relevant materials that were before the Tribunal with us to establish an error being made by the Tribunal in making order (1) of the orders of 6 January 2025.
4. As for prejudice to the respondent, we see no real prejudice to the respondents. This matter too therefore favours an extension of time.
5. Balancing all these matters, we consider that the time for filing the Notice of Appeal should be extended to 6 February 2025.

1. It is difficult to escape the impression that the appellant was attempting to run her case again.
2. This is impermissible. As the Appeal Panel stated in Noori v JMG Auto Parts Pty Ltd [2022] NSWCATAP 250:

74. ... an appeal to the Appeal Panel does not provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. And, as the Appeal Panel stated in [Temple v AMR Motors Pty Limited [2017] NSWCATAP 221], in passages relied on by the respondent:

38 ... Any decision to grant leave to appeal must be undertaken in a legally principled manner and not simply because, if we were hearing the matter anew on the evidence led before the Member, we might reach a different conclusion when considering that evidence (although in the present case that would not be so).

39. It is fundamental that an appeal on a question of fact does not provide and is not intended to provide an opportunity for an applicant dissatisfied by the result of a hearing at first instance to re-run the same case before an Appeal Panel. Yet, that is, in effect, what the present Appellants seek to do by identifying what they contend are contestable findings of fact by the Member.

75 To put the matter another way, as indicated in the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website):

... an appeal is not an opportunity to have a second go at a hearing.

1. For the above reasons, we would not grant leave to appeal, and otherwise dismiss the appeal.

(1) The application for leave to extend the time for the filing of the Notice of Appeal is granted.

(2) The application for leave to appeal is dismissed.

(3) The appeal is otherwise dismissed

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.

[7] pp 9, 20 to 25, 27 to 30 of the Reply Bundle

[8] pp 10 to 11 of the Reply Bundle. Apparently, Mr Camp was the original owner of Lot 1.

[15] Image 7, being p 30 the Appeal Bundle.