Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Newland v The Owners - Strata Plan No. 576 [2021] NSWCATCD 86 Hearing dates: On the Papers Date of orders: 15 February 2021 Decision date: 15 February 2021 Jurisdiction: Consumer and Commercial Division Before: M Eftimiou, General Member Decision: Pursuant to section 63 of the Civil and Administrative Tribunal Act 2013 (NSW) the Registrar is directed to alter the text of the orders made on 4 January 2019 to read as follows: (1) An order is made pursuant to the provisions of s 237 Strata Schemes Management Act 2015 appointing Vital Strata Management Pty Ltd is appointed as compulsory strata managing agent for The Owners-Strata Plan 576. The appointment shall be on the terms and conditions as set out in the Strata Management Agency Agreement dated 8 November 2018. (2) Vital Strata Management Pty Ltd shall exercise all of the functions of the Owners Corporation, including the functions of the chairperson, treasurer, secretary and the strata committee. (3) The appointment is to be for a period of two (2) years commencing on the date of the orders (4 January 2019). Catchwords: PRACTICE AND PROCEDURE – Power to correct errors in Decisions of the Tribunal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: Dixonbuild Pty Ltd v Adams [2020] NSWCATAP 190 Texts Cited: Nil Category: Procedural rulings Parties: Jan Newland (First Applicant) LD Beston (Aust) Pty Ltd (Second Applicant) Richard Dalimore (Third Applicant) The Owners – Strata Plan No. 576 (Respondent) Dee Mahon, Natalie Helm, Deborah Bassett, Yucon Zhang, Xian Zhang and Descol Pty Ltd, Benoit de Tarle (Joined Parties) Representation: File Number(s): SC18/33922 Publication restriction: Nil REASONS FOR DECISION Background 1. On 4 January 2019 the Tribunal made the following orders in matter SCS18/33922. 1. Vital Strata Management Pty Ltd is to be appointed as a compulsory strata managing agent to exercise all the functions of the chairperson, secretary, treasurer and strata committee of the owner's corporation pursuant to s 237 of the Strata Schemes Management Act 2015 (NSW) (SSMA) and in accordance with the Consent to compulsory appointed dated 8 November 2018. 2. The appointment is to continue for a period 2 years from the date of these orders. 1. On or about September 2020, one of the parties to the proceedings, Mr de Tarle, wrote to the Tribunal concerning the omission from those orders of an order under s 237(1) to confer the powers of the Owners Corporation on the strata manager as well as those of the strata committee and the particular office holders. 2. Accordingly, it was determined that the matter should be relisted before the Tribunal as originally constituted to determine if there was an error in the order and, if so what orders should now be made. Procedural directions 1. On 6 October 2020 the Tribunal made the following orders: On or before 12 October 2020 the parties are to file and serve submissions about whether or not an order should be made pursuant to s 63 of the Civil and Administrative Tribunal Act (NSW) 2013 (NCAT Act) to correct the orders made on 4 January 2019 so as to provide for the strata managing agent appointed under that order to have the powers of the Owners Corporation as provided by s 237(1)(a)-(c). On or before 19 October 2020 the parties are to file any submissions in reply. The submissions are to include submissions about whether an order should be made under s 50(2) of the NCAT Act dispensing with a hearing. The Tribunal gave written reasons for making these orders. 1. On 14 October 2020 the Tribunal made the following further orders. These proceedings are listed for telephone directions on 5 November 2020 at 9.15am to consider the following: a. The request by the respondent, Mr de Tarle, by letter dated 12 October 2020 (copy attached) for an extension of time to comply with the directions made 6 October 2020. b. The request by Ms Newland for an extension of time contained in the email dated 8 October 2020 ( copy attached) c. Any other relevant matter about which directions should be made. On or before 28 October 2020, any party who wishes to participate in the Directions hearing must provide to the Tribunal their contact details (direct telephone or mobile number) and confirmation they wish to participate. Failure to do so may mean the Directions hearing proceeds in their absence. The Directions made 6 October otherwise remain in effect. Parties should also provide to the Tribunal any updated contact details, including updated email addresses, if appropriate. 1. The matter was listed before the Tribunal on 5 November 2020. On that date the Tribunal varied the orders made on 6 October 2020 and made the following orders: 1. Mr de Tarle (an interested party) is to make a request to the Tribunal on or before 9 November 2020 to view the Tribunal file, with the inspection to take place within 10 working days thereafter. 2. Within seven days after viewing the Tribunal file, Mr de Tarle is to file and serve submissions about whether or not an order should be made pursuant to section 63 of the Civil and Administrative Tribunal Act ( NSW ) 2013 to correct the orders made on 4 January 2019 so as to provide the strata managing agent appointed under that order to have the powers of the Owners Corporation as provided by s237(1)(a)-(c). The submissions are to include submissions about whether an order should be made under s50(2) of the NCAT Act dispensing with a hearing. 3. No further extensions of time will be granted unless there are exceptional circumstances. 4. The Tribunal notes that the applicants and the respondent consent to the Tribunal dispensing with a hearing pursuant to section 50(2) NCAT Act and will not be filing any submissions in relation to section 63 issue. 1. On 18 November 2020 the Tribunal received submissions from Mr de Tarle. No other submissions were received by the Tribunal. Mr de Tarle did not directly make any submissions regarding the proposed order under s 63 of the NCAT Act. Rather, he submitted that on reviewing the Tribunal file, a large part of the applicant's material was never served or provided to him at the time that the original decision was made. Mr de Tarle also refers to the applicants having amended the application without the respondents being given an opportunity to reply to any amendments. Mr de Tarle alleges that much of the material filed by the applicants in the original application contains "content which is false, misleading, and/or selective in its presentation. By not serving that material as required the applicants effectively denied a party ( with an intimate knowledge of many of these matters and able to provide fully verifiable evidence) the opportunity to respond and correct that content for the benefit of all. As the provision of false and misleading material undermines the tribunal process and in turn the confidence of the general public in regard to that process, I would suggest the tribunal refer such concerns to the appropriate division as a separate matter." Issues 1. Should a hearing be dispensed with in accordance with s 50 (2) of the NCAT Act? 2. Should an order be made pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to correct the orders made on 4 January 2019 so as to provide to the strata managing agent appointed under that order to have the powers of the Owners Corporation as provided by s 237(1)(a)-(c) of the Strata Schemes Management Act 2015? Consideration Should an order be made dispensing with a hearing? 1. Pursuant to section 50(2) of the NCAT Act the Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. 2. The Tribunal has afforded to the parties an opportunity to make submissions about the proposed order and the Tribunal has taken any such submissions into account in making its decision. 3. The parties advised the Tribunal at the directions hearing of 5 November 2020 that they did not object to the Tribunal making an order dispensing with a hearing and determining the matter on the written material before it. 4. Mr de Tarle in his submissions dated 18 November 2020 neither objects or consents to an order dispensing with a hearing. 5. The Tribunal is satisfied that the parties have been afforded an opportunity to make submissions about the proposed order and the Tribunal has taken any submissions into account. The Tribunal is satisfied that it is appropriate to make an order dispensing with a hearing as the issues for determination can be adequately determined in the absence of the parties by considering the written material provided to the Tribunal. Should an order be made under s 63 NCAT Act? 1. Section 63 of the NCAT Act gives the Tribunal power to correct errors in decisions of Tribunal. Section 63 relevantly provides: 63 Power to correct errors in decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where-- (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons. 1. The Appeal Panel in Dixonbuild Pty Ltd v Adams [2020] NSWCATAP 190 at paragraph [94] held that s63 operates to permit the amendment to an order in circumstances where : (1) There is an obvious error in the order, (2) Even if the Tribunal was unaware of the error at the time the order was made the error arises from facts which, if known to the Tribunal, would have caused it at once to make an order correcting the error; (3) Correcting the error does not involve redetermination of the real issues in the dispute; (4) The correction of the error will not be contrary to the orders made and/or any reasons given in respect of the original orders, unless those orders and reasons also require correction for obvious error; and (5) The amendment will not give rise to any injustice on the party affected. 1. The decision made by the Tribunal on 4 January 2019 was determined on the papers with the consent of the parties. The applicants sought orders pursuant to s 237(1) of the Strata Schemes Management Act 2015 (NSW) (the Act) for the appointment of a compulsory strata managing agent. The owners' corporation were neutral in terms of its position with respect to the application. 2. The owners of Lots 2, 4, 12, 15, 19, 29 and 36 were joined as parties to the proceedings. The joined parties agreed that a compulsory strata manager should be appointed in accordance with section 237(1) of the Act. The only dispute between the parties was as to which strata manager should be appointed. Mr de Tarle (the owner of Lot 15) neither consented or opposed the application. 3. The Tribunal found that the provisions of section 237(3) were met and that the strata scheme was not functioning or not functioning satisfactorily. 4. In relation to this, [16-17] of the decision of the Tribunal states: [16] The Tribunal is satisfied that the strata scheme is not functioning or not functioning satisfactorily. It is conceded by both parties that the owners corporation has failed to comply with the requirement imposed on the owners corporation by an order made under this Act. [17] The applicants have sought that the compulsory strata manager be appointed and to have and may exercise all the functions of the owners corporation and all of the functions of the Chairperson, Secretary, Treasurer or Strata Committee , including specified functions as set out in (i-ix) of the applicants submissions. The joined parties agree that the powers given under the appointment should be comprehensive and enable the appointee to carry out all of the functions and duties of the owners corporation, the strata committee and the office holders. 1. In making an order pursuant to s 237 of the Act the Tribunal did not include an order requiring the appointment of the strata managing agent to exercise all the functions of the owners corporation. The making of such an order was consistent with the orders sought and with the Tribunal findings 2. The Tribunal is satisfied that the omission of an order giving the compulsory strata manager the power to carry out all of the functions and duties of the owners corporation and the strata committee is an obvious error because it has created an inconsistency between the orders and the reasons for decision. This is an appropriate matter in which to exercise the power under s63 of the NCAT Act and to correct an obvious error. The Tribunal is satisfied that correcting the error will not be contrary to any reasons given in respect of the original orders. Furthermore, correcting the error does not involve redetermination of the real issues in the dispute and will not give rise to any injustice to the parties. This is because the order reflects the position of the parties at the time of the hearing. 3. The Tribunal has had regard to the submissions made by Mr de Tarle dated 18 November 2020. As noted above, Mr de Tarle did not address in those submissions the Tribunal's proposal to amend the orders pursuant to s63 of the NCAT Act. Rather, Mr de Tarle raised matters in regards to the decision made by the Tribunal on 4 January 2019 and issues of procedural fairness. The submissions made by Mr de Tarle are not relevant to the issue of correcting the orders made by the Tribunal pursuant to s 63 of the NCAT Act. 4. The strata manager (Vital) has now been functions as appointed strata manager for a period of 2 years apparently exercising all the powers of the owners corporation and the strata committee. In these circumstances it was not submitted and there is no evidence to suggest any prejudice in correcting the orders. The orders should be corrected to reflect the omission made by the Tribunal. 5. In accordance with the Tribunal's powers under s 63 of the NCAT Act the Tribunal directs the Registrar to alter the text of the orders made on 4 January 2019 ( to take effect from 4 January 2019) to read as follows: 1. An order is made pursuant to the provisions of the Strata Schemes Management Act 2015, s 237, appointing Vital Strata Management Pty Ltd is appointed as compulsory strata managing agent for The Owners-Strata Plan 576. The appointment shall be on the terms and conditions as set out in the Strata Management Agency Agreement dated 8 November 2018. 2. Vital Strata Management Pty Ltd shall exercise all of the functions of the Owners Corporation, including the functions of the chairperson, treasurer, secretary and the strata committee. 3. The appointment is to be for a period of two (2) years commencing on the date of the orders (4 January 2019). ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2021