Sorbara v The Owners – Strata Plan 75666 [2021] NSWCATAP 369

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sorbara v The Owners – Strata Plan 75666 [2021] NSWCATAP 369 Hearing dates: 4 November 2021 Date of orders: 18 November 2021 Decision date: 18 November 2021 Jurisdiction: Appeal Panel Before: The Hon F Marks Principal Member K Ransome Senior Member Decision: (1) Leave to appeal refused. (2) Appeal dismissed. Catchwords: APPEAL – failure by appellant to provide recording and transcript of proceedings from which appeal is brought STRATA TITLES LAW – exclusive use and enjoyment by appellant of area created by by-law – by-law provided for appellant to be responsible to keep area in good repair – held appellant responsible for cost of maintaining the area. Legislation Cited: Strata Schemes Management Act 2015 ss 135, 136, 142, 144 Category: Principal judgment Parties: Dominic Sorbara (appellant) The Owners – Strata Plan 75666 (respondent) Representation: Appellant self-represented Makinson and d'Apice (Respondent) File Number(s): 2021/100226617 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 2 August, 2021 Before: J Ringrose General Member File Number(s): SC 21/12712

Reasons for decision

Background 1. The appellant in these proceedings, Dominic Sorbara, is one of two joint owners of a lot being a residential unit in Strata Plan 75666. On 19 March 2021 he filed a strata schemes application in this Tribunal against the respondent, The Owners – Strata Plan 75666. It is not clear from the application what orders he sought against the respondent. It seemed to revolve around repairs as a result of water damage to his unit. 2. The application came on for hearing before a Member of this Tribunal on 2 August 2021. The Member dismissed the application, stating that • Having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established • The application for orders under the Strata Schemes Management Act 2015 is dismissed because the applicant has only sought relief in general terms and has not provided evidence to enable the Tribunal to make specific orders in any of his claims. Most of the claims made under sec 106 for repairs have now been carried out and claims for compensation are non-specific and out of time. 1. The Member also denied the respondent leave to be legally represented. The Member then referred to his reasons for decision, stating "Detailed oral reasons were provided at the hearing." 2. The appellant filed a Notice of Appeal on 9 August 2021. He did not seek leave to appeal. His grounds of appeal appear to cover the following: 1. the respondent had refused mediation by Fair Trading 2. the appellant had been refused the opportunity of being legally represented at the hearing 3. he denied that any of his claims were "out of time" 4. the Member had failed to take into account evidence whether a door or roof in a jacuzzi room was watertight. 1. On 1 September 2021 a Principal Member of this Tribunal made directions in these appeal proceedings that amongst other matters required the appellant to provide a sound recording or transcript of the hearing at first instance because oral reasons had been given together with a typed copy of the relevant parts. The appellant has failed to provide this material. 2. An appeal does not create an opportunity to rehear an application, except in circumstances granted by the Appeal Panel. In general terms, an appeal will only succeed if the appellant can demonstrate that in some way the Member made errors in her or his understanding of the law or of the factual basis for the proceedings and any such errors affected the proper outcome of the proceedings. 3. A consequence of the failure of the appellant to comply with the directions made for the preparation of these appeal proceedings is that the Appeal Panel had no means available to it of knowing what information or evidence was provided to the Member during the hearing from which the appeal was brought. This is particularly important because reasons for decision were given orally and were said to be "detailed". If the Appeal Panel does not know what factual basis existed upon which the Member delivered his reasons, and if the Appeal Panel does not know what those reasons were, it is impossible to consider whether the Member made any error of a kind which would support the appellant's entitlement to appeal. It follows, that in the absence of any of this material the Appeal Panel's difficulty in considering the appeal will almost inevitably lead to its dismissal. We interpolate that the brief reasons which accompanied the order of the Member which we have set out in [2] above bear little resemblance to what we have ascertained is the real issue in dispute in these proceedings, which we shall refer to later in these reasons for decision. We also note that the respondent's solicitor could not be contacted on the day of the hearing before the Tribunal and was thus unable to make oral submissions to the Member. 4. During the course of the hearing we engaged with the appellant in an endeavour to discover what was the real issue in the proceedings. It was only when the appellant described the unit in which he lived, the particular maintenance problems which he was encountering and the respondent's solicitor explained the reasons why the body corporate refused to pay for the cost of repairs that we were able to bring the appellant to an understanding of his circumstances and why, as a result, the decision of the Member to dismiss his application was correct, albeit for different reasons, and that his appeal should fail.