Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dong v The Owners – Strata Plan 44092 [2022] NSWCATAP 202 Hearing dates: On the papers Date of orders: 17 June 2022 Decision date: 17 June 2022 Jurisdiction: Appeal Panel Before: G Ellis SC, Senior Member A Boxall, Senior Member Decision: (1) The application for an extension of time is rejected. (2) Leave to appeal is refused. (3) The appeal is dismissed. Catchwords: APPEAL - Notice of Appeal lodged more than 21 months late - No evidence provided to first instance hearing - Application breached mediation agreement Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Texts Cited: None cited Category: Principal judgment Parties: Nola Dong (Appellant) The Owners – Strata Plan No 4092 (Respondent) Representation: Applicant (Self Represented) S Sadarangani (Respondent) File Number(s): 2022/00080634 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 12 May 2020 Before: C Campbell, Senior Member File Number(s): SC 10/57085 reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 12 May 2020. 2. The issues in the appeal are (1) whether to extend the time for filing the Notice of Appeal, (2) whether to give leave (ie permission) to appeal other than a question of law, (3) whether the decision at first instance was not fair and equitable and/or against the weight of the evidence, and (4) whether to allow the appeal. 3. For the reasons set out below, the outcome in relation to those issues may be summarised as (1) rejecting the application for an extension of time because of the lengthy, unexplained delay, (2) refusing leave to appeal as no miscarriage of justice has been shown, (3) not accepting either the claim that the decision at first instance was not fair and equitable or the claim that the decision was against the weight of the evidence and, as a result, (4) dismissing the appeal, noting that the terms of a mediation agreement included a provision that the applicant would not make claims in relation to the subject matter of the application and appeal. Tribunal proceedings and decision 1. The appellant commenced proceedings against the respondent by an application dated 17 December 2020. The matters raised were (1) repair of the appellant's living room floor, (2) a loss of carpet and furniture, (3) interest charged on a levy, and (4) the alleged health impact of those matters. 2. At the final hearing on 12 May 2020 the Tribunal made the following order: The application is dismissed because the flooring in the applicant's lot has been replaced in a material of the applicant's choosing [and] the works were completed by the 22-March-2020. 1. In the letter dated 12 May 2020 in which that order was set out, under the heading "NOTATION", the following words appear: The Tribunal notes that neither party complied with the directions for the exchange of evidence which were made by Senior Member Thode on the 05-Fenruary-2020. Mr Amoroso told the Tribunal he had not received the Notice of Hearing. The applicant wishes to challenge two months interest charged by the respondent. It was suggested to her that she prepare a Motion and some written submissions in support of the Motion and send that to the Secretary of the Strata Plan 44092 to be added as an Agenda item to be considered at the next General Meeting. Mr Amoroso confirmed the Motion and Submissions are to be addressed to the Secretary and the documents can be sent to his office. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) NCAT Act. As there is no question of law raised in this appeal, it is necessary to consider whether to grant leave to appeal. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied the appellant may have suffered a substantial miscarriage of justice on the basis that: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins) at [76] it was held that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division satisfies the requirements of cl 12(1), the Appeal Panel must still consider whether to exercise its discretion to grant leave to appeal under s 80(2)(b). In Collins the Appeal Panel stated, 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. 1. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice". 1. Section 41 of the NCAT Act, which deals with extensions of time, provides: (1) The Tribunal may, of its own motion or on the application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired. 1. The discretion to grant an extension of time is unfettered but must be exercised judicially: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [18]. Relevant considerations, as set out in that case at [22], may be summarised as follows: (1) Is there proof that strict compliance with the rules will work an injustice on the applicant? (2) In the context of a pending appeal, the expiration of the period for appeal gives a vested right to retain the decision in question with the consequences that the time for appealing should not be extended unless the proposed appeal has prospects of success. (3) It will usually be necessary to consider: (a) the length of the delay, (b) the reason(s) for the delay, (c) the applicant's prospects of success, ie whether there is a fairly arguable case, (d) the extent of any prejudice suffered by the opponent(s). (4) If the explanation for the delay is less than satisfactory and/or if the opponent as a substantial case of prejudice, it may be necessary for the applicant to show substantial merit, not just that it is fairly arguable. Submissions and evidence 1. In deciding the appeal, we have had regard to (1) the Notice of Appeal lodged on 21 March 2022, (2) the appellant's submissions lodged on 28 March 2022, (3) the Reply to Appeal lodged on 6 May 2022, and (4) the respondent's submissions dated 30 March 2022. Notice of Appeal 1. The Notice of Appeal was lodged on 28 March 2022, which is outside of the 28-day period specified in cl 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (the Rules) since a Notice of Appeal from a 12 May 2020 decision should have been lodged on or before 9 June 2020. In other words, the Notice of Appeal was 21 months late. 2. The orders challenged on appeal were said to be (1) replacement of the damaged timber floor, (2) waiving of interest charges, (3) damaged furniture and carpet, and (4) private personal information being used by others, and (5) health impact. 3. The grounds of appeal specified in the Notice of Appeal were expressed in terms of the appellant's dissatisfaction with the conduct of the strata managing agent in relation to the refusal to pay for the appellant's damaged furniture and carpet and the refusal of a claim by the insurance company. 4. In the Notice of Appeal, it was suggested that the decision was not fair and equitable because of the failure to pay for the appellant's damaged furniture and carpet and that the damp timber floor was the cause of health problems for the appellant. 5. It was also contended that the decision was against the weight of the evidence. It was suggested that evidence provided at the hearing included (1) a photo of the damaged property, (2) payment records, (3) documents showing the reporting of the problem over a period of years, and (4) a quotation from Timberland Australia Pty Ltd. That appears to be a reference to documents lodged with the application. 6. In relation to an extension of time, the appellant claimed that on 30 September 2020 she went to the Tribunal, but it was closed and that she had an accident which resulted in her being taken to Sydney Hospital. Appellant's submissions 1. The documents submitted under cover of a letter dated 28 March 2022 contained reference to an incident said to have occurred on 29 September 2020, while the appellant was on her way to the Tribunal, which resulted in her being hospitalised. There was a complaint about the provision of the appellant's contact details to a collection agency. The quotation and photo provided were copies of documents which accompanied the application. Reply to Appeal 1. The respondent sought to have the order made at first instance confirmed and the appeal dismissed. Further, the respondent opposed leave being granted on the basis that the matter had been resolved and the appellant had not complied with a settlement agreement which included a term that she would not raise the subject matter of that agreement again. 2. A copy of an agreement reached in a NSW Fair Trading mediation on 24 March 2021 was provided. That document recorded that the following matters had been agreed between the parties: - Respondent out of good will, agrees to waive the interest charged to the Applicant for unpaid levies in the amount of $393.49 - The Applicant agreed not to raise any further claims in relation to the water ingress - The Applicant agrees moving forward, that if she has any issues in relation to her unit or common property, she will put this in writing to the starat manager and the email or hand deliver to [the] strata manager['s] office in person - … Respondent's submissions 1. The documents submitted by the respondent were a page setting out points for consideration at a 6 April 2022 call-over and two printed pages which are not legible because of the size of the printing. The application 1. A copy of the application and accompanying documents was included in the appeal papers and that has enabled consideration of what documents were before the Tribunal on 12 May 2020 when the application was considered and determined. Those documents include a quotation from Timberland Flooring dated 28 April 2016 which is four years prior to the hearing. Consideration 1. The first matter requiring consider whether to grant an extension of time for the commencement of this appeal. Although no supporting medical evidence was provided for the applicant's hospitalisation on 29 September 2020, even accepting that occurrence, (1) there was no adequate explanation for the period from 12 May 2020 until 29 September 2020, only a suggestion that the Tribunal was closed, (2) there was no indication of the period of hospitalisation, and (3) there was no adequate explanation for the period after 29 September 2020 until the Notice of Appeal was lodged almost 18 months later, on 21 March 2022. Applying what was said in Jackson, that inadequate explanation, coupled with the lack of merit in the challenges to the first instance decision (indicated below), favours refusing an extension of time. 2. The suggestion that the decision was against the weight of the evidence is rejected in that neither party lodged any evidence and that alone would justify the application being dismissed, which was the outcome at first instance. Nor can it be said that a decision to reject an application when no evidence was lodged in response to the directions of the Tribunal was not fair and equitable. In those circumstances there is no miscarriage of justice with the result that there is no basis for granting leave to appeal. 3. Even if the documents accompanying the application are treated as being evidence that was before the Tribunal at first instance, the outcome would not have been any different. Dealing with each of the four orders sought in turn. The first matter raised was the repair of the living room floor which the orders records was finalised on 22 March 2020, about six weeks prior to the first instance hearing, and there is no challenge to that statement. Secondly, the documents provided with the application did not provide sufficient support for a claim in relation to carpet and furniture. Thirdly, the claim relating to interest on a levy is no longer in issue because the 24 March 2021 mediation agreement records the waiver of that interest charge. Fourthly, there was no evidence going to the alleged impact on the appellant's health, even assuming she was entitled to bring such a claim in the Tribunal. 4. There is a further impediment to an appeal lodged on 21 March 2022 against an order made on 12 May 2020: after the first instance hearing but prior to the initiation of the appeal there was a mediation conducted on 24 March 2021 which resulted in the appellant agreeing "not to raise any further claims in relation to the water ingress". 5. Two further matters are worth noting. First, it is noted that no question of law was raised in the Notice of Appeal and no such question appears from the appeal papers. Secondly, as is indicated on the Tribunal's website, an appeal is not an opportunity for the appellant to run the case again: rather, it is for the appellant to establish either (1) a question of law or (2) a matter which warrants a grant of leave to appeal. As the appellant has not satisfied either of those criteria, even if the appeal had been commenced within time, the appeal should be dismissed. 6. For the reasons set out above, the following orders are made: 1. The application for an extension of time is rejected. 2. Leave to appeal is refused. 3. The appeal is 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. 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: 17 June 2022