These proceedings commenced when the applicants filed a summons seeking leave to appeal on 25 July this year. The applicants are the registered owners of lots 31 and 32 within a strata scheme located at 54 Fitzmaurice St, Wagga Wagga. The respondent comprises the Owners of Strata Plan No 675, of which lots 31 and 32 form part.
In brief, the applicants seek leave to appeal from a decision dated 26 June 2024 of an Appeal Panel of the NSW Civil and Administrative Tribunal (NCAT) (see York & Edwards v The Owners - Strata Plan No 675 [2024] NSWCATAP 121).
The applicants are aggrieved by the Appeal Panel's decision. It dismissed their appeal from an NCAT decision dated 19 December 2022. The NCAT decision rejected the applicants' contention that it was inappropriate to adopt an allocation of unit entitlements which relied wholly upon the relative values of lots as at 17 June 2014, as assessed by a valuer retained by the respondent, Mr Darren Keen of Keen Property Pty Ltd (Keen Report).
Previously, in 2021, the Owners sought to have a reallocation of unit entitlements, relying on the Keen Report, on the basis that the allocation of unit entitlements was unreasonable when the last subdivision was registered, being on 17 June 2014. The Owners' application was brought under s 236 of the Strata Schemes Management Act 2015 (NSW). In an earlier decision dated 18 October 2021, NCAT found that the allocation of unit entitlements as at 17 June 2014 was unreasonable, but NCAT then declined to make an order reallocating those unit entitlements.
This decision was appealed by the Owners and a differently constituted Appeal Panel allowed the appeal on 24 May 2022 (see The Owners-Strata Plan No 675 v York & Edwards [2022] NSWCATAP 171).
The matter was remitted by the first Appeal Panel to a differently constituted NCAT for redetermination as to whether an order for a reallocation of unit entitlements should be made by the Tribunal under that Act.
On the remitter, the only issue was for the Tribunal to determine whether it was appropriate to make an order specifying a different unit entitlement allocation. The Keen Report proposed that unit entitlements of lots 31 and 32, being the two relevant lots owned by the applicants in these proceedings, would increase from 60 to 109 and 24 to 43 respectively, representing an increase of 82% and 79% respectively.
The Tribunal concluded that the owners of lots 31 and 32 had not identified any matter which rendered it inappropriate to rely on the relative values of the lots as at 17 June 2014 as reflected in the Keen Report. This decision was effectively affirmed on 26 June this year when the second Appeal Panel refused the applicants leave to appeal and their appeal was dismissed.
Let me say something about the procedural history of the proceedings in this Court. The applicants are in serious breach of orders dated 5 September 2024 in the present proceedings. The matter was listed then for hearing today, 20 November 2024, and directions were made for that to occur. On 5 September, the Registrar noted an undertaking given by the respondent's counsel that it would not seek to register a document with the presently determined schedule of entitlements until the applicants' summons was determined, on the basis that the hearing of that summons would take place this year.
The applicants sought to file an affidavit dated 18 September 2024 sworn by their solicitor, Ms Jayawardena York. The Registry responded on 19 September 2024, pointing out that, due to the voluminous size of the exhibit, which was more than 500 pages, the applicants were requested to provide a hard copy. Apparently this has not occurred. But Ms Jayawardena York, who has appeared for the applicants before me today, said that it was her intention to include a copy of that material in the Court Book. Ms Jayawardena York said that she had with her today one copy of the Court Book but needed additional time to provide the Court and the respondent with a copy.
The applicants were over three weeks late in filing additional affidavit evidence and their outline of written submissions was not filed until yesterday, notwithstanding that they were due by 14 October 2024.
The respondent drew the applicants' attention to their defaults in various letters which were attached to the respondent's preliminary written submissions filed 11 November 2024. The respondent also provided detailed supplementary written submissions today, 20 November 2024. I understand from Ms Jayawardena York that she was only provided with a copy of those submissions at about 9am today. She says that she has not had adequate time to review and comprehend those submissions.
The respondent's correspondence includes a letter dated 2 September 2024 in which the applicants were requested to specify with precision the questions of law upon which they relied. This request, which has not been fulfilled, was made in circumstances where, under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the applicants are required to obtain this Court's leave to appeal on a question of law against any decision made by the Appeal Panel. The fundamental requirement to identify the relevant questions has been explained and, indeed, emphasised in a long line of cases, including my recent judgment in Singh v Health Care Complaints Commission [2024] NSWSC 1307.
The respondent has filed an affidavit dated 24 October 2024, by Zachariah Tankard, who is the chairperson of the Owners' Corporation. Attached to that affidavit is a copy of the Keen Report.
The parties were contacted by my Chambers regarding the failures to comply with the Court's directions on 15 November 2024. On 18 November, the applicants' solicitor sent an email requesting that the hearing be vacated and a brief affidavit in support was provided. The parties were informed that, if the respondent opposed the request, the applicants were required to file a notice of motion seeking to have the hearing vacated, which motion would be heard at the outset of the hearing scheduled for today.
At 5.10am yesterday the applicants filed a 41 page outline of written submissions in respect of the substantive hearing. Those submissions elaborated upon the 31 page summons seeking leave to appeal filed 25 July 2024.
On 19 November, the applicants also sought to file a notice of motion, seeking to have the hearing vacated and replaced by a hearing no earlier than 13 December 2024 and preferably, apparently, some time next year. It is desirable to set out all the orders sought in the motion (without alteration):
1 The hearing on 20 November 2024 is vacated and the proceeding is re-fixed for hearing no earlier than 13 December 2024 on an estimate of one day.
2 The decision and order made by the Appeal Panel of the NSW Civil and Administrative Tribunal in case number 2023/00017017 on 26 June 2024 be stayed until either the Plaintiffs' summons seeking leave to appeal has been dispensed with in its entirety, or the Court lifts the stay order.
3 The time provided for the defendant to file and serve an affidavit to be relied on at the appeal or application for leave to appeal that exhibits affidavit or other document from the proceedings in the court below that the defendant wishes to be considered at the hearing of the appeal, or application for leave to appeal, be extended to 29 October 2024 [sic].
4 The time provided for the plaintiffs to file and serve an outline of its submissions be extended to 19 November 2024.
5 The time provided for the plaintiffs to file and serve the Court Book, be extended to 20 November 2024.
6 The time provided for the defendant to file and serve an outline of its submissions together with a list of authorities and legislation to which it intends to refer, be extended to 4 December 2024.
7 The plaintiffs file and serve any submissions in reply, together with a list of authorities and legislation to which they intend to refer, be extended to 11 December 2024.
8 Costs reserved.
As mentioned, the motion was also supported by an affidavit by the applicants' solicitor filed on 18 November 2024.
In brief, Ms Jayawardena York deposes that she is a sole practitioner. She acknowledged that there had been delays in complying with the Court's directions, for which she, properly, if I may say so, accepted personal responsibility. She apologised for the delay and explained that she currently had a heavy workload and was attempting to deal with timeframes in various proceedings in specified courts and tribunals in multiple jurisdictions.
Ms Jayawardena York also said that, over the last three months, she has been caring for family members, including her parents who had both experienced medical problems, which has distracted her.
Ms Jayawardena York said that she had been working over the last few months until 3am some days and that she has become exhausted and unwell. She asked that a directions hearing replace the substantive hearing listed for today and revised orders be made with a view to the matter being heard.
The respondent opposed the motion. It relied upon an affidavit by its instructing solicitor, Mr Stephen Groch. The affidavit is dated 19 November 2024 and was provided to the Court this morning at the same time as a copy was provided to Ms Jayawardena York. The affidavit deposes to prejudice which the respondent says it will suffer if the hearing date is vacated. It also points to the fact that an undertaking was given, as I have previously mentioned, on 5 September 2024 regarding the Owners not proceeding with respect to the revised unit entitlement allocation.
In oral submissions before me today made on behalf of both the applicants and the respondent respectively, Ms Jayawardena York, for the applicants, says that she is not able to proceed today because of the short amount of time that she has had to be able to understand and respond to the respondent's written submissions. She says that she needs more time in order to be able to "assist the Court" in the presentation of her clients' case.
Ms Jayawardena York also says that the Court would be disadvantaged if it did not have before it today a copy of the Court Book which she says contains copies of affidavits and submissions which have been made in the previous proceedings and that these matters are important to issues of context.
During the course of an exchange with the Court, I pointed out to Ms Jayawardena York that the Court's jurisdiction, if leave is granted, is to hear an appeal from the second Appeal Panel decision rather than hear an appeal from the previous two NCAT decisions or the first Appeal Panel decision.
The material (in excess of 500 pages) which will constitute the Court Book will need to be reviewed by the applicants to remove material which can have no bearing upon the questions of law which are the subject matter of the proceedings before this Court. I also consider that it is essential that the applicants provide a precise identification of the questions of law upon which they rely for the purposes of s 83(1) of the CAT Act. I am not persuaded that that has occurred to date.
In all those circumstances and not without, I might say, some hesitation because I regard this as a borderline case, I will accede to the applicants' application to vacate the hearing. The hearing will proceed before me because I am part-heard on 16 December 2024 at 10am.
I make the following formal orders:
1. The hearing of the summons filed 25 July 2024 scheduled for today is vacated.
2. The summons filed 25 July 2024 is listed for hearing before me at 10am on 16 December 2024.
3. On or before 2 December 2024:
1. the applicants are to file and serve a hard copy of the Court Book as revised in the light of today's transcript what I have observed above regarding material which is not relevant to the present proceeding;
2. the applicants are to file and serve an outline of submissions in reply to the respondent's written submissions dated 20 November 2024;
3. either in that reply document or as an annexure, the applicants are to identify with precision each and all of the questions of law which are the subject of their summons seeking leave to appeal; and
4. the applicants have leave to file and serve an amended summons should they be minded to do so.
1. The applicants are to pay the respondent's costs thrown away up to and including today's date.
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Decision last updated: 20 November 2024