Westerweller v The Owners Strata Plan No 18482

Westerweller v The Owners Strata Plan No 18482 - [2023] NSWCATAP 113 - NSWCATAP 2023 case summary — Zoe

[5]

Leave to appeal

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).
The principles to be applied by an Appeal Panel in determining whether 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 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.
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 Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

[7]

The Primary Decision

The application the subject of the Primary Decision, application SC 22/10623 (Renewal Proceedings) was a renewal of application SC 21/44576 (Original Proceedings). The Tribunal stated at [2] of the Primary Decision that: 2. The only issues which I must decide in these proceedings (the Renewal Proceedings) are as follows: (1) What is the proper construction of the consent orders made in the Original Proceedings and do they require the common property roof to be wholly or partially replaced? (2) Should the Tribunal, in the exercise of its discretion, appoint a compulsory strata managing agent and if so, what functions should be exercised by the compulsory strata managing agent?
The Tribunal then noted that, the following orders were made by the Tribunal in the Original Proceedings on 10 November 2021 (Consent Orders): 1. By consent, the Owners - SP 18482 is to cause the undertaking of the following work, on or before 8 December 2021, in a proper and workmanlike manner: a remove the airconditioning units, condensers, conduit and other associated works ("the airconditioning works') from the roof, and b carry out such work as is necessary to reinstate the roof to the condition it was in prior to the placement of the air conditioning works on the roof 2. NOTE: The owner of Lot 3 has advised the Owners Corporation that it agrees to be responsible for the cost of the removal of the air conditioning works. 3. These orders are made in full and final settlement of this dispute. 4. If these orders are not complied with by the date referred to, the applicant may renew these proceedings at any time up until 8 December 2022.
The Tribunal then noted at [8] that in the Renewal Proceedings the applicant initially sought a variety of orders. However, at the hearing on 1 November 2022 the applicant's counsel confirmed that the only order pressed was an order under s 237 of the Strata Schemes Management Act 2015 (NSW) (SSMA) for the appointment of a compulsory managing agent to exercise all the functions of the respondent.
At [10] to [15] the Tribunal then summarised the evidence, and at [16] and [17] set out the relevant legislative provisions.
At [18], the Tribunal noted: The matter has a lengthy and convoluted history and it is helpful to make some factual findings in relation to key background matters before turning to the issues which I must decide. The following factual findings are based on the parties' respective evidence and, unless indicated, are not disputed.
At [19] to [51], the Tribunal set out the background under the heading "Facts leading up to the Renewal Proceedings.
At [52] to [57], under the heading "What is the proper construction of the Consent Orders?", the Tribunal concluded at [57]: In the light of these surrounding circumstances, the respondent's construction of the consent orders is to be preferred. That is, that the works required by the consent orders were repairs to the damage caused by the installation of the air-conditioning system, rather than replacement of the roof.
At [58] to [101], under the heading "Should the Tribunal, in the exercise of its discretion, appoint a compulsory managing agent?", the Tribunal concluded: 100. As the Consent Orders have now been complied with, and the delay in compliance is well explained, the appointment of a compulsory manager is not. justified and the Renewal Proceedings serve no further practical purpose. 101. The other grounds raised by the applicant are not relevant to the Renewal Proceedings. Even if they were, I am not satisfied that any of those grounds, considered either individually or as a whole, would warrant the Tribunal taking the serious and draconian measure of appointing a compulsory manager under s 237 of the Act.

[9]

Appellant's submissions

In the Amended Notice of Appeal, the appellant's legal representative states that he had difficulty obtaining instructions because of the appellant's serious medical diagnosis. No further explanation for the delay was advanced in the submissions dated 13 March 2023.
In submissions in reply dated 31 March 2023, the appellant submitted, in summary: 5. The Appellant's lawyers have experienced difficulties with obtaining detailed instructions from the Appellant. It is noted that the Respondent criticises this contention upon the basis of there being no medical evidence in support of that claim. This issue will be further dealt with at the end of these submissions. 6. It has never been disputed by the Respondent that the Appellant is suffering from advanced Motor Neurone disease, a condition which, self-evidently is both serious, disabling and terminal. It is contended that the contentions made about difficulty obtaining instructions are as self-evident as they are reasonable. It is further submitted that this Tribunal would adopt a practical and realistic approach to this issue and be satisfied as to this contention. Simply saying that because instructions were able to be obtained to initiate the costs appeal demonstrates no such difficulty existed ought not to be accepted. 7. The Respondent's contention that a forensic decision was made not to prosecute the appeal against the Primary Decision is rejected and ought not to be accepted. 8. It is both reasonable and fair for the Tribunal to accept that the prevailing circumstances in which instructions were properly obtained after sufficient opportunity had been available to permit the process of explaining and providing advice to the client provides a satisfactory explanation for the delay.
In support of these submissions, the appellant relies on the affidavit of his solicitor, Mr Michael Gillis, sworn 31 March 2023. In summary, Mr Gillis states that he has known the appellant for over 20 years, was informed by the appellant approximately two and a half years ago that he had been diagnosed with motor neurone disease, and since that time has observed significant deterioration in the appellant's physical and mental capabilities. Mr Gillis states: Since the commencement of these proceedings, I have observed the appellant's ability to concentrate and provide coherent instructions has significantly decreased. I observed the [a]ppellant and had difficulty in providing me with clear instructions in relation to the proceedings at first instance and the appeal. In particular, while I am satisfied that the [a]ppellant understood the nature of the proceedings and the appeal and that he has provided instructions to me conduct the litigation, it has been challenging obtaining coherent instructions about specific issues as a result of his failing memory and fixation on issues that are irrelevant to the proceedings, judgment and appeal.
Mr Gillis annexes a medical report of Dr Harry Hirschowitz dated 31 March 2023 which confirms these matters.

[19]

Appellant's submissions

The appellant's submissions are dated 13 March 2023. The principal matters relied on by the appellant are addressed under the heading "The purported 'ambiguity'". In summary, the appellant submits that at [56] of the Primary Decision the Tribunal stated: Also, the Consent Orders contain no concrete proposal for reinstatement of the roof in the sense of a defined scope of works, with the result that the [respondent] is left to guess what it is required to do: Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 (Glenquarry) at [104]-[105]. This problem is exacerbated by the inclusion of the words "carry out such work as is necessary to reinstate the roof" meaning that the task of determining what is "necessary" is left to the [respondent]. Similarly, the requirement for the roof to be reinstated to its condition "prior to placement of the air conditioning works" is problematic because the Orders contain no explanation as to what that prior condition was.
The appellant submits that that statement: 1. Conflates the concepts of cause and effect, the Consent Orders clearly contemplating repairing any damage resulting from the illegal erection of the air-conditioning units and repairing any damage caused by the presence of air- conditioning units. 2. Cannot and should not be seen to exclude the orders to reinstate the roof to its original state. 3. Is an unduly narrow perspective and an exercise in "hindsight reasoning". 4. Fails to consider that the appellant "vehemently" objected to and voted against the respondent's resolutions in May and June 2021 on the basis that he wanted reinstatement by way of new roofing to replace the damaged new roofing.
The appellant further submits that: 1. The Tribunal further erred by finding that expert evidence from the appellant was required to prove exactly what was needed to exceed the "minimum necessary to ensure that the respondent had complied with its statutory duty". 2. The Tribunal's reference to the email from Strata Roofing (see [56(3)] of the Primary Decision) as a basis for rejecting the appellant's contentions as to what was agreed in the Consent Orders amounts to an impermissible and selective retrospective examination of extrinsic matter. 3. The wording of the orders consented to by the respondent did not require "guesswork" by the respondent, as stated by the Tribunal. 4. The Consent Orders did not use the word repair, a word that is clear in its meaning, and has a different meaning to the word reinstate.
The appellant concludes: Simply stated, to the extent that it was permissible for the Senior Member to undertake the exercise of interpreting the terms of the Consent Orders, the Senior Member erred when preferring the Respondent's construction of the Consent Orders and relying upon that position when making further orders in the proceedings.

[20]

Respondent's submissions

In the Reply to Appeal, the respondent states: 1. The Member was correct to conclude that the Consent Orders were ambiguous because (among other things): (a) the meaning of the requirement in the Consent Orders for the respondent to "reinstate" the roof was unclear and did not require the respondent to replace the roof as contended by the appellant (reasons at [53]); (b) the Consent Orders did not contain or refer to any concrete proposal or scope of works for the reinstatement of the roof as a result of which it was not clear precisely what works the Consent Orders required the respondent to perform (reasons at [54]); (c) the inclusion in the Consent Orders of the words "carry out such work as is necessary" to reinstate the roof to its condition "prior to placement of the air-conditioning works" was problematic because the Consent Orders contained no explanation as to the nature and scope of the necessary work or the prior condition of the roof (reasons at [54]); (d) the appellant himself ostensibly acknowledged the ambiguity of the Consent Orders when he submitted that it would be a matter for a compulsory strata manager to determine how many of the roof panels would require replacement in order to comply with the Consent Orders (reasons at [551). 2. The matters which the appellant contends the Member failed to consider or give any or any adequate weight to (being particulars (i) - (iv) of ground 1) were not raised by the appellant in the proceedings under appeal, are not relevant to the question as to whether the Member erred in determining that the Consent Orders were ambiguous and do not demonstrate (either separately or collectively) any error by the Member.
These matters are amplified at length in the respondent's submissions of 29 March 2023, Under the headings "Key Findings, "Guesswork", "Surrounding Circumstances", "The Purpose of the Consent Orders", "Agreement to the Consent Orders" and "Condition of and Damage to the Roof", the respondent sets out its submissions as to why the Consent Orders were ambiguous, and why the Senior Member was correct to conclude as such.

[22]

Consideration of the first ground of appeal

As submitted by the respondent, there was a dispute between the parties at the hearing before the Tribunal as to the proper construction of the Consent Orders. The appellant contended that the Consent Orders required the respondent to replace the roof of the building while the respondent contended that the Consent Orders only required it to repair the damage to the roof caused by the installation of two air-conditioning units by the owner of lot 3.
We consider that as the appellant had commenced renewal proceedings under the NCAT Act (namely, cl 8 of Sch 4) and there was a dispute between the parties as to the meaning of the Consent Orders, the Tribunal was required to make a finding as to the meaning the Consent Orders. The Tribunal had to interpret the Consent Orders in order to decide whether the respondent had complied with the orders. Unless the respondent had failed to comply with Consent Orders, there was no basis for a renewal application.
As the respondent correctly submits, the Tribunal concluded that the Consent Orders were vague and unclear for three reasons being: 1. The Consent Orders required the respondent to "reinstate" the roof to a previous condition and the ordinary, everyday meaning of the expression "reinstate" is broad and, in the context of roofing work, could be taken to mean any number of steps. 2. The Consent Orders did not contain a concrete proposal for the reinstatement of the roof or refer to a defined scope of works for its reinstatement and, by their terms, required the respondent to carry out "such work as is necessary" to reinstate the roof to its condition "prior to placement of the air-conditioning works" which was problematic because: 1. the respondent was left with the task of determining what work was "necessary" to reinstate the roof; and 2. the Consent Orders contained no explanation as to the prior condition of the roof (to which condition the roof needed to be reinstated). 1. The appellant, by his counsel, conceded that the Consent Orders were ambiguous by submitting that it would be a matter for the compulsory strata manager to determine how many of the roof panels would require replacement in order to Comply with the Consent Orders.
In our view, it was open to the Tribunal to conclude that the Consent Orders were ambiguous for the reasons set out above. We see no error in the Tribunal's conclusions or its reasons and accept the respondent's submissions concerning this issue.
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: 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.
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.
This appears to be precisely what the appellant is seeking to do.
While the grounds of appeal raised a question of law, we are not satisfied that the Tribunal made any error. We are satisfied from the Tribunal's reasons for decision that the Tribunal considered the matters summarised in the grounds of appeal.
Accordingly, the appellant requires leave to appeal in relation these grounds.
We would not grant leave to appeal as we are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result application for leave to appeal has no merit.

[23]

The second ground of appeal

The second ground of appeal is that the Tribunal erred in determining that a compulsory strata manager should not be appointed under s 237(3) of the SSMA.
The seven "particulars" of this ground, which the appellant also asked us to treat as grounds separate grounds of appeal, are that the Tribunal failed to consider or give any or any adequate weight to the fact that: 1. The respondent did not adduce any contemporaneous evidence of confusion as to the meaning of the Consent Orders until Mr Lowey's affidavit was filed three weeks prior to the hearing. 2. The respondent did not take any unconditional steps to comply with Order 1(a) of the Consent Orders by 8 December 2021. 3. The respondent did not comply with its interpretation of the Consent Orders until at least nine months after 8 December 2021. 4. The respondent's attempts to repair the roof were always subject to the air conditioning units being approved to be on the balcony of Lot 3. 5. No repair work or reinstatement work on the roof could take place until the air conditioners were removed which the owner of Lot 3 would not undertake until approval had been provided by the respondent and Local Council to place the air conditioners on the balcony of Lot 3. 6. The respondent allowed the air conditioner on Lot 3 (the owner of Lot 3 being a member of the strata committee of the respondent) to be placed and remain on the roof with Local Council. 7. The respondent had not taken any reasonable steps to address emergency repairs because such a failure was "historical" and the respondent's conduct pre-dated the Renewal Proceedings.
We asked Mr O'Dowd whether any of these grounds raised a question of law. Mr O'Dowd submitted that the failure to consider evidence at all was raised a question of law. Assuming this is correct, again on the basis that a failure to consider evidence is a failure to constructively exercise jursisdiction, the next question is whether the Tribunal made an error of law.

[25]

Respondent's submissions

In its Reply to Appeal the respondent states: 3. The Member did not err in determining that a compulsory strata manager should not be appointed to the respondent. The decision of the Member on that issue was a discretionary one and the appellant has failed to articulate how the Member made an error in the exercise of her discretion of the type identified in House v King (1936) 55 CLR 499. 4. The Member was correct to conclude that there had been no substantive breach of the Consent Orders committed by the respondent at the time the proceedings were determined as a result of which there was no basis to appoint a compulsory strata manager (reasons at [64] - [65]). 5. The Member correctly held that even if the Consent Orders had required the roof to be replaced, the respondent's failure to replace the roof would not have given rise to serious concerns about the management of its strata scheme that would have justified the appointment of a compulsory strata manager for the reasons given by the Member (reasons at [66] - [67]). 6. The Member was correct to conclude that the respondent's failure to carry out the roofing works by the due date set by the Consent Orders of 8 December 2021, when considered in its full context including the factual finding the Member made that the appellant himself was at least partly responsible for the delay, did not demonstrate mismanagement or disfunction on the part of the respondent and that, on the contrary, the respondent had, despite difficult circumstances, made diligent and persistent efforts to comply with the Consent Orders (reasons at [69] - [701). 7. The Member was correct to conclude that the other matters on which the appellant relied in an attempt to demonstrate that it was appropriate for the Tribunal to appoint a compulsory strata manager were not relevant to that question or were not made out on the evidence (reasons at [79]-[99]). 8. The matters which the appellant contends the Member failed to consider or give any or any adequate weight to (being particulars (i) - (vii) of ground 2) were not raised by the appellant in the proceedings under appeal and in any event do not demonstrate (either separately or collectively) any error by the Member.
These matters are amplified in the respondent's submissions under the following headings: "Preliminary Point; "The Power to Appoint a Compulsory Strata Manager", "Key Factual Findings", "No Appeal Against Key Factual Findings", The Respondent's Conduct - An Isolated, Discrete Issue", "No ongoing Failures by the Respondent" "Previous Strata Manager's Faults", "Discord" and "Fresh Evidence" and "Confusion".

[27]

Consideration of the second ground of appeal

To the extent that the appellant's submissions raise matters not agitated before the Tribunal, we have had no regard to those matters. As the Appeal Panel stated in Kora v Ian's Roofing Pty Ltd [2023] NSWCATAP 42: 54. As the plurality of the High Court of Australia noted in Coulton v Holcombe (1986) 162 CLR 1 at 8; [1986] HCA 33: . . . in a recent decision of six Justices of this Court (University of Wollongong v. Metwally [No. 2] ) the Court said: "It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. (citations omitted) 55. See too Drivas v Burrows [2014] NSWCATAP 87 where the Appeal Panel observed: 32. The considerations favouring finality of litigation are at least as strong, and probably stronger, in the case of the Tribunal given the importance attached to the expeditious and inexpensive disposition of proceedings [under the] Civil and Administrative Tribunal Act (the Act). 33. Generally, a new point will not be allowed where the consequence would have to be a new trial because "evidence could have been given which by any possibility could have prevented the point from succeeding": Suttor v Gundowda [[1950] HCA 35; (1950) 81 CLR 418] at 438.3.
While these grounds of appeal raise a question of law, we are not satisfied that the Tribunal made any error.
An order to appoint a compulsory strata manager under s 237 of the SSMA involves the exercise of a discretion. A decision made in the exercise of a discretion can only be overturned in limited circumstances; namely that the decision was founded on a wrong principle, took into account irrelevant considerations, failed to take into account relevant considerations, took an erroneous view of the facts or was unreasonable or plainly unjust: see House v The King (1936) 55 CLR 499 (House v The King) at 505-506.
It is clear from [63] to [99] of the reasons for decision that the Tribunal considered the appellant's submissions and evidence, in relation to such issues as: 1. The respondent's failure to comply with the consent orders in the time specified in the orders. 2. The allegations of dysfunctionality and failure of the respondent to perform duties. 3. The appellant's allegations concerning events which had occurred in 2013 and 2014, during and after the tenure of the previous compulsory strata manager. 4. The effect of the unit entitlements that apply in the scheme and the fact that the appellant holds just over 25% of unit entitlements; 5. The assertions made by the previous strata manager. 6. The actions of the owner of lot 3 in installing air conditioning condensers on the balcony of lot 3 without obtaining council and other approvals. 7. The removal of the applicant's representative as a member of the strata committee. 8. Building reports identifying building defects and a leak into the appellant's lot.
The Tribunal clearly considered the evidence, weighed the parties' competing positions, made findings that were available to it and exercised the discretion in an orthodox manner. The fact that the appellant disagrees with the Tribunal's findings and decision does not mean that the Tribunal's discretion miscarried in the House v The King sense. In substance, as is the case with the first ground of appeal (and other grounds associated with it), the second ground of appeal (and the other grounds associated with it) also attempts to reargue matters determined by the Tribunal by taking issue with the Tribunal's findings of fact.
While these grounds of appeal raise a question of law, we are not satisfied that the Tribunal made any error.
To the extent that these grounds of appeal do not raise questions of law, we are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result application for leave to appeal has no merit. In these circumstances, we would not grant leave to appeal.

[30]

The Tribunal's reasons for decision

After setting out the background to the Costs Decision, the Tribunal noted at [13] that the respondent was "wholly successful in the Renewal Proceedings".
The Tribunal then stated at [15] that the issues to be determined on the costs application were: 1. Should an order be made dispensing with a hearing, pursuant to s 50(1)(c) of the NCAT Act? 2. Is the amount claimed or in dispute in these proceedings more than $30,000? 3. If not, are there special circumstances warranting an award of costs? 4. If the answer to either (2) or (3) is yes, should the Tribunal, in the exercise its discretion, make a costs application in favour of the respondent?
In relation to the first issue, for the reasons set out at [22] to [25], the Tribunal made an order dispensing with a hearing.
In relation to the second issue, for the reasons set out at [26] to [40], the Tribunal concluded that r 38 was not the applicable costs rule. While not explicitly stated, given the Tribunal's consideration of "special circumstances at [41] to [66], the Tribunal clearly considered that the applicable costs rule was that set out in s 60 of the NCAT Act.
In relation to the third issue, for the reasons set out at [41] to [65], the Tribunal considered that the respondent had established special circumstances. In summary, the Tribunal found that the following matters established special circumstances: 1. The pre-litigation conduct of the appellant. The Tribunal concluded: 50. By threatening and harassing contractors engaged by the OC, instructing contractors to provide revised quotes and by unilaterally (and in breach of the Strata Act) carrying out alterations to the common property, the applicant effectively took matters into his own hands. This conduct was not only inappropriate, but it obstructed the OC's attempts to carry out its duty to repair the common property and to comply with the Consent Orders. 51. Whilst I accept that the Consent Orders were ambiguous, and the applicant was entitled to challenge the OC's interpretation of those orders, this does not excuse his attempts to subvert the proper processes of the OC. 52. Had the applicant not engaged in such conduct it is likely that the repairs necessary to comply with the Consent Orders would have been carried out promptly after the Consent Orders were made and the Renewal Proceedings could either have been avoided entirely, or the issues in dispute in the proceedings could have been significantly narrowed. At the very least the applicant's claim regarding payment of the invoice of the contractor who removed the air conditioning (which claim was only withdrawn on the day of the hearing) would have been avoided. Also, there would have likely been no issue regarding the timeliness of the OC's compliance with the Consent Orders. 1. Whether the appellant's conduct of proceedings disadvantaged the respondent. The Tribunal concluded: 63. Whilst it is not uncommon for there to be some delays or mishaps in the conduct of proceedings, in this case I am satisfied that the way in which the applicant conducted the proceedings, and in particular the matters discussed in points one to four above, go well beyond what might be expected in the ordinary course of case management. The failure to provide key documents to the OC in a timely manner, the lack of compliance with Tribunal orders regarding the preparation of evidence, and the last minute abandonment of key parts of the claim, have shown a flagrant disregard for the guiding principle of the Tribunal set out in s 36 of the NCAT Act. No explanation has been provided by the applicant's representatives for any of this conduct, all of which has resulted in the OC being put to unnecessary additional time and expense to defend the proceedings.
In relation to the fourth issue, for the reasons set out at [66], the Tribunal considered that it was appropriate, in the exercise of its discretion, to make an order that the appellant pay the respondent's costs of and incidental to the Renewal Proceedings.

[32]

The second ground of appeal

In the Amended Notice of Appeal, the appellant set out 12 particulars of "Pre-Litigation Conduct" and five particulars of "Conduct of Proceedings" in support of the second ground of appeal. We were asked to treat these particulars as separate grounds of appeal.
The 12 grounds relating to pre-litigation conduct were: 1. The pre-litigation conduct of the appellant did not amount to special circumstances relevant to the question of costs which would justify the order for costs made by the Tribunal. 2. The conduct of the appellant in all of the circumstances was reasonable where: 1. there was lack of action by the respondent to reinstate the roof; 2. the owner of Lot 3 was only prepared to remove the air conditioners that he had placed on the roof without Local Council or the respondent's approval in compliance with Consent Order 1(a) if he had approval to place the air conditioners on his balcony; 3. the respondent's insistence that repairs were an adequate remedy were matters that the appellant was entitled to reasonably consider justified his conduct in attempting to prevent works being conducted which were not in compliance with the Consent Orders in circumstances where on the Tribunal's findings the Consent Orders were ambiguous. 1. The Tribunal failed to consider or give any or any adequate weight to the fact that the unauthorised works had been carried out by "a member of the respondent" [sic] and that the respondent had taken no steps to prevent it or have the unauthorised works removed. (We assume that by "member of the respondent" the appellant means that the owner of lot 3 is a member of the respondent's strata committee). 2. The Tribunal failed to consider or give any or any adequate weight to the fact that the applicant held a reasonable view of the meaning of the Consent Orders and the failure of the respondent to discharge its statutory obligation to the unit holders. 3. The Tribunal erred in finding the active steps taken by the owner of Lot 3 to remove the air conditioners was not subject to third party approval to have the same air conditioners placed onto his balcony. 4. The Tribunal erred in finding the removal of the air conditioners by the applicant's contractor resulted in the selection and appointment of contractors to carry out the reinstatement of the roof in compliance with the Consent Orders being more complicated and drawn out. 5. The Tribunal erred in not finding the respondent did not comply with Consent Order 1(b). 6. The Tribunal erred in finding the respondent was at the relevant time, confused as to the meaning of the Consent Orders. 7. The Tribunal erred in finding that the respondent would have complied with the Consent Orders had it not been for the appellant's conduct and there would be no issue regarding the timeliness of the respondent's compliance with the Consent Orders. 8. The Tribunal's exercise of its discretion was infected by an erroneous determination that the respondent was confused at the relevant time of the meaning of the Consent Orders and the respondent had communicated that confusion at any time prior to the respondent lodging its evidence in the Renewal Proceedings. 9. The Tribunal failed to consider or give any or any adequate weight to the fact that the respondent had not undertaken any works identified by the respondent's own consultants as emergency works for over four years prior to the Consent Orders and commencement of the Renewal Proceedings. 10. The Tribunal failed to consider or give any or any adequate weight to the fact of the appellant's infirmity and vulnerability relating to his illness and desires to protect the integrity of his living environment and the roof immediately above his unit.
The five grounds relating to the conduct of the proceedings were: 1. The Tribunal erred in determining the conduct of the proceedings disadvantaged the respondent (in particular the submission concerning meeting the claims which were not pursued at the hearing) in circumstances where at the time the Renewal Proceedings were commenced the works described in the Consent Orders had not been undertaken by the respondent. 2. The Tribunal failed to consider or give any or any adequate weight to the fact that the orders initially sought in the Renewal Proceedings were reasonable where no works on the roof had been undertaken by the respondent at the time of commencement of the Renewal Proceedings. 3. The Tribunal erred in determining that the respondent wasted costs because of the late amendment withdrawing claims in circumstances where it was the late services of the evidence of the respondent which necessitated the late abandoning of those claims. 4. The Tribunal erred in criticising the appellant in the conduct of his case in circumstances where the appellant was not allowed to make submissions on his own behalf to the Tribunal. 5. The Tribunal erred in determining the appellant's conduct of the proceedings went well beyond what might be expected in the ordinary course of case management.
Finally, the appellant submitted: 3. It is undisputed on the facts that the actions of applicant were carried out without proper authority or approval from the [respondent]. 4. Steps taken by the Applicant, although debatable in relation to specific actions, were in the range of conduct where reasonable minds can differ. 5. Ultimately, the remediation of damage to the roof by the [r]espondent occurred after significant delay and, on the evidence, would not have occurred had the [appellant] not challenged the [r]espondent and sought action over a long period of time, including through the commencement of the proceedings. 6. The nature of the Tribunal is to attempt to find justice in all the relevant circumstances. The width of discretion must have regard to all the matters, including the subjective position of the Applicant and the frustration apparent from his evidence. 7. The forensic decision to narrow the relief sought in the hearing was not unreasonable in circumstances where action had been taken to deal with some (if not all) of the complaints raised by the [appellant], and the [appellant's] desire to have independent and competent management reflected his concern further in relation to his position as a minority shareholder in the strata scheme. 8. The criticism by the Member of particular forensic decisions in the leadup and at hearing ought not have given such close scrutiny, including in regard to the finding that decisions may have lengthened the hearing given that the matter was set down for a one day hearing and determined within that period and in such circumstances no unreasonable costs would have been occurred. Such decisions are routine in litigation, especially in NCAT where costs savings are the primary goal and decisions are made in consideration of the material available at the time. 9. The position of the [appellant], having regard to his sad personal circumstances including his terminal diagnosis illustrate his relative disadvantage to the [r]espondent, and, while acknowledging that the [appellant] brought the proceedings, are demonstrated by the [appellant's] evidence and timeline in circumstances where there were unwarranted delays by the [r]espondent in remediating damage regarding unauthorised works. 10. In all the circumstances, the decision to award costs was unfair, unjust, and unwarranted.

[33]

Appellant's submissions

The appellant's submissions dated 13 March 2023 are organised under the headings "[The appellant's] conduct" and "Was it reasonable for [the appellant] to pursue the renewal application?"
In addition to the submissions set out in the Amended Notice of Appeal, the appellant submits that the Tribunal made 14 further "errors" in exercising its discretion. These are set out at [72] of the appellant's submissions.
The first ten "errors" related to the weight given to evidence relied on by the appellant, including his "infirmity and vulnerability relating to his illness and desires to protect the integrity of his living environment and the roof immediately above his unit.
The appellant submits, to an extent repeating what was set out in the Amended Notice of Appeal: 1. The Tribunal's determination that the conduct disadvantaged the respondent ignores the fact that at the time of the Renewal Proceedings were commenced the works described in the Consent Orders had not been undertaken by the respondent. 2. The Tribunal's determination that the respondent wasted costs because of the appellant's late decision to withdraw claims was "simply wrong", as it was the late service of evidence of the respondent which motivated the appellant to abandon those claims. 3. The Tribunal was wrong to criticise the appellant in the conduct of his case in circumstances where he was not allowed to make submissions to the Tribunal in person on the question of costs. 4. The Tribunal was also wrong in determining that the appellant's conduct of the proceedings went well beyond what might be expected in the ordinary.
The appellant at [73] to [78] sets out further matters on which he relies in support of his grounds of appeal, concluding: 79. The position of the [a]ppellant, having regard to his sad personal circumstances including his terminal diagnosis illustrate his disadvantage to the [r]espondent, and, while acknowledging that the [a]ppellant brought the proceedings, are demonstrated by the [a]ppellant's evidence and timeline in circumstances where there were unwarranted delays by the [r]espondent in remediating damage regarding unauthorised works. 80. In all the circumstance, the decision to award costs was unfair, unjust and unwarranted.

[34]

Respondent's submissions

In the Reply to Appeal the respondent, in summary, submitted that: 1. The Tribunal did not err in finding that special circumstances warranted an order for costs. 2. The Tribunal's findings concerning the appellant's pre litigation conduct were correct. 3. The Tribunal was correct to find that the appellant's conduct of the proceedings disadvantaged the respondent. 4. The Tribunal's decision to award costs was a discretionary one and the appellant has not identified any error in the exercise of that discretion in the sense identified in House v King. 5. The matters which the appellant contends the Tribunal failed to consider or give any or any adequate weight to were either not raised by the appellant before the Tribunal, were properly considered by the Tribunal or do not demonstrate any error that would have produced a different outcome. 6. The Tribunal was entitled to make the factual findings referred to by the appellant having regard to the evidence and those findings were not against the weight of evidence.
The respondent filed lengthy submissions numbering almost nine pages organised under the following headings: "Appellant's Pre-Litigation Conduct", "Key Factual Findings", "Confusion", "Likely Compliance with Consent Orders on Time", "Appeal Against Factual Findings", "Appellant's conduct During the Litigation", "Key Factual Findings", "No appeal against Key Factual Findings", "Abandoning the Claims for Relief", "Timing of Evidence", "Routine Forensic Decisions" and "Medical Condition" and "Focusing on the Respondent's Conduct".
Those submissions conclude: 79. The bulk of the appellant's submissions on costs focus on the conduct of the respondent and the owner of lot 3 prior to and during the course of the proceedings. Those submissions represent an impermissible attempt by the appellant to rerun the arguments he unsuccessfully advanced before Senior Member Ziegler. It must be borne in mind that an appeal does not provide an opportunity for the unsuccessful party to rerun the hearing. An appeal provides an opportunity for the appellant to demonstrate error in the decision under appeal. The appellant has not done so.

At a glance

Court

Decision date

Source

Judgment (42 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (21)

Cited By (16)