Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners – Strata Plan No 95230 v Maister [2022] NSWCATAP 390 Hearing dates: 18 November 2022 Date of orders: 15 December 2022 Decision date: 15 December 2022 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member Decision: (1) Order 7 made by the Tribunal at first instance is stayed until further order or finalisation of the appeal, whichever is the earlier in time. (2) The Application for a Stay is otherwise dismissed. (3) Any party or parties seeking an order for costs of the application for a stay are to lodge and serve an application for same in the form of an Application for Miscellaneous Matters, supported by submissions and evidence in support of the costs application, within 14 days of the publication of these orders. In the absence of any application, I will not make any order about costs, leaving the costs of the stay to be considered costs of the proceedings. (4) Any submissions and evidence in response to the costs application are to be lodged with the Appeal Registry and given to the costs applicant(s) within 14 days thereafter. (5) Submissions on the application for costs are not to exceed five pages in length. (6) The Appeal Panel may dispense with a hearing and determine any application for costs on the basis of the written submissions and evidence provided. If the parties oppose this course they should make submissions on this issue when complying with the directions as to their submissions on the substantive costs application. Catchwords: APPEAL – application for stay – need to establish real risk of irreparable prejudice or damage before balance of convenience considered – cross-examination in interlocutory proceedings before Tribunal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Strata Schemes Management Act 1996 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Beck v Colonial Staff Super Pty Ltd & Ors (No. 2) [2015] NSWSC 1360 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1 Bentran v Sabbarton [2014] NSWCATAP 37 Blatch v. Archer (1774) 1 Cowp. 63 In the matter of Sunnyside Bettoni Pty Ltd [2020] NSWSC 1891 Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 Matthews v SPI Electricity Pty Ltd [2013] VSC 422 MW v Director-General, Department of Community Services [2008] HCA 12 Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 PG Nominees Pty Ltd v WBHO Infrastructure Pty Ltd [2020] VSC 48 Ren v Giang [2014] NSWCA 1 Silberstein v Strata Choice Pty Ltd [2022] NSWCATAP 249 The Owners - Strata Plan No 70798 v Bakkante Constructions Pty Limited [2013] NSWSC 848 Texts Cited: None cited Category: Procedural rulings Parties: The Owners – Strata Plan 95230 (Appellant) Stacey Maister (First Respondent) Terry Maister (Second Respondent) Debby-Lee Maister (Third respondent) Representation: Solicitors: Bannermans Lawyers (Appellant) JS Mueller & Co Lawyers (Respondents) File Number(s): 2022/00333593 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Cited Date of Decision: 10 October 2022 Before: G Burton SC, Senior Member File Number(s): SC 21/37812 REASONS FOR DECISION Background 1. The appellant Owners Corporation's appeal is from a decision of the Consumer and Commercial Division made on 10 October 2022, after the Tribunal conducted a hearing in April 2022 and received a further written submissions ending in June 2022. 2. In summary the appellant was ordered to: 1. complete various works in the unit (lot) of the respondents (in which only one of the respondents, the "resident respondent" lives), which the Tribunal found related to common property that the appellant was liable to maintain; 2. pay the respondents $140,803.40 by way of compensation by 10 October 2022. The Tribunal noted that this amount included calculated damages of $1100 per week for "alternative, accommodation for the resident [respondent]" in the lot from and including 28 May 2021 up to and including 10 October 2022"; and 3. pay the further sum of $1100 per week from and including 11 October 2022 until the expiration of seven days after the date upon which some of the works are completed. 1. The Tribunal made various machinery orders to ensure the workmanlike completion of the works, the source of the damages award, for a relist in respect of the calculation of ongoing damages and in respect of hearing from the parties on costs. 2. The substance of the dispute between the parties was that the respondents had, at first instance, sought remedial action and damages for alleged defects to common property causing water entry and mould in their lot. The respondents claimed they became aware of the issues in June 2018 but despite numerous requests and the provision of several expert reports to the appellant, no significant remediation had occurred until May 2021. The appellant continued to conduct remedial works after the hearing at first instance. The Tribunal noted, at [6], that it was "common ground that there has been defects in the common property that allowed water to leak through the windows into the lot. Whether those defects remained, and what was required to remediate them if they did, was in contest." 3. The Tribunal noted the uncontested fact that the Owners Corporation has a strict duty to maintain and repair the common property under the Strata Schemes Management Act 2015 (NSW) (SSMA) and that the duty extends to remediation of defects in the construction of the common property. 4. In respect of the amount ordered for compensation for alternative accommodation, the resident respondent made the claim for that expense whilst staying in a unit owned by a company controlled by related persons. She gave evidence, accepted by the Tribunal, that she would have to, and had to an extent, paid for the use of that accommodation. 5. The Tribunal took evidence from building experts engaged by each party in respect of the remediation works. It noted that those experts had engaged in a conclave and largely agreed about the remedial works to be performed. The Tribunal noted, at [35] that the "disagreement between the building experts focused on whether the bathroom tiles need to be replaced… and whether [other items] were consequential damage". Other evidence from the respondents' mould expert was uncontradicted. Remediation works were ongoing up to the hearing date. 6. At [39] the Tribunal noted that the appellant's expert accepted that the remediation and consequential loss was intertwined with remediation of the mould affected areas and preventative treatment of those areas, an area in which he had "limited expertise". After considering the evidence of both experts, the Tribunal decided to accept the respondents' expert's scope of works. 7. The Tribunal also accepted the respondents' mould expert's evidence on the basis that it was uncontradicted. 8. In respect of the question as to whether the wall and floor tiles in the ensuite and main bathroom needed removal and replacement, the Tribunal accepted the respondents' building expert's evidence that they were "severely stained and had efflorescence from leaching. The large, splotchy stains were very different to other stains, unaesthetic (sic) and unacceptable in finish. The tiles also required removal and replacement because of a combination of the following: inadequate fall in the screed below the tiles; inadequate thickness of waterproof membrane below the ensuite tiles; removal of tiles and upturn of waterproof membrane to access wall cavities to remediate mould; laying the missing waterproof membrane below the main bathroom screed; inadequate sealing of the base of the tiles which allowed water to penetrate through the tiles and to leach irreversibly salts (sic) to the tiles' surface – sealing of the tile base required removal of tiles". 9. To the contrary, the appellant's expert said that the staining was a cosmetic defect restored to acceptable condition by works undertaken prior to the hearing, and that a lesser scope of works could address the drainage issue. At [47] the Tribunal recorded that the appellant's expert in concurrent evidence accepted the respondents' expert's measurements of the tile screed and noted that, in respect of that issue he said he "needed more information, which he didn't have, about the brand of liquid membrane. He agreed one would need to lift the tiles to access or install membrane but said one could not say that the tiles could not necessarily be reused. He had tested the fall to the drain and it varied but he didn't accept it was inadequate even though it did not meet the requirements. He didn't do a water test on the drainage and had no reason to doubt the resident owner's evidence of ponding". 10. At [48], the Tribunal recorded the evidence of the respondents' expert that he had tried during his investigations to remove without breaking the particular type of tile used and that there was a high likelihood of inability to reuse them due to being broken or damaged. The respondents' expert also discounted the effectiveness of the less extensive remedial works suggested by the appellant's expert. 11. The Tribunal weighed that evidence and preferred the evidence of the respondents' expert, for reasons it gave. 12. The Tribunal made findings accepting that the resident respondent suffered ill effects from the mould in the lot which required medical treatment, for which she should be compensated. The Grounds of Appeal 1. The Notice of Appeal was lodged in time. The appellant challenges the decision on several bases, including, relevantly: 1. that the order for compensation for alternative accommodation encompassed a period whilst the resident respondent was in fact living in her lot. The appellant alleges that in cross-examination the resident respondent admitted that she had moved from her alternate accommodation. Later, it received an email indicating the resident respondent moved back into the lot in June 2022. 2. that the Tribunal miscalculated the damages for alternative accommodation (the discrepancy alleged totals $628.57 of the damages amount). 3. the Tribunal erred in making a damages award for what were, in effect, legal costs in the form of disbursements for expert evidence obtained after the proceedings were commenced. 4. the Tribunal erred by making an order for mould rectification works where the remediation works have already been completed rendering the "lot habitable and a clearance certificate given." 5. that the Tribunal denied the appellant procedural fairness by allowing the respondents to rely on evidence and a scope of works obtained and filed outside the period allowed by procedural directions made for the preparation of the hearing and after the joint expert conclave had already taken place. The appellant notes it objected to that evidence being relied upon at the hearing. 6. the decision is otherwise against the weight of the evidence. Legislative Foundation and Principles Relating to Granting a Stay 1. The lodgement of an internal appeal does not affect the operation of the decision appealed against. Nonetheless, under s 43(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) the Tribunal has discretion to stay or make another order affecting the operation of a decision pending the determination of the appeal. That discretion must be exercised judicially and the general principles that apply in relation to the exercise of that discretion are derived from the terms of s 43(3) itself. As I noted in Silberstein v Strata Choice Pty Ltd [2022] NSWCATAP 249 at [15], unlike a superior court of record which has inherent power to stay proceedings, the Tribunal is entirely a creature of statute. On that basis, the Tribunal has no inherent power to grant a stay. The terms of s 43(3) dictate that the discretion to make an order under that section is constrained, principally, by the need to ensure the orders affect "the operation of a decision to which the […] appeal relates" and are "appropriate to secure the effectiveness of the determination of the […] appeal." 2. Additional guidance in the application of relevant the principles can be obtained from the considerations applied by the Courts in deciding whether or not to grant a stay pending an appeal, summarised in a decision of the Appeal Panel constituted by the former President of the Tribunal, Justice Wright in Bentran v Sabbarton [2014] NSWCATAP 37 at [9]. 3. To summarise those principles here, it is sufficient to cite what was said by Slattery J in Beck v Colonial Staff Super Pty Ltd & Ors (No. 2) [2015] NSWSC 1360 at [35], with the citations omitted, that: [35] The principles governing a stay of a judgment pending appeal are well established. The applicant must demonstrate that there is a reason for the grant of a stay or that a matter is an appropriate case in the exercise of the Court's discretion. It is not necessary for the applicant for the stay to establish special or exceptional circumstances. The stay is likely to be granted if the appeal would otherwise be rendered nugatory. The Court considering the grant of a stay is not required to determine the merits of the appeal but usually considers whether the applicant has at least an arguable case; and the Court may impose conditions on the grant of a stay including that the applicant pay a sum of money […] or otherwise secure the payment of the disputed sum. The central determinant as to whether a stay would be granted, and if so upon what terms, if any, is the Court's assessment as to what is a fair balance of the rights of the parties, given that an appeal does not of itself operate as a stay and the party who has succeeded at trial is entitled to the fruits of its victory. 1. The overriding principle in an application for a stay is to ask what the interests of justice require: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83]; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [18]. Application in the Present Case 1. In the present case, the respondents should be taken to be entitled to the benefit of the decision at first instance unless the appellant can demonstrate that it is appropriate to grant a stay of any of the orders made. 2. The first matter I should consider is whether the appeal raises serious issues to be determined by the Appeal Panel or, in other words, whether the appellant has a reasonably arguable case on appeal. In that regard, the respondents do not submit that the appeal is not reasonably arguable, although they submit it has little apparent merit. I will proceed on the basis it is arguable. 3. In Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383, at [18], the Court said. Thus the relevant principles are analogous to those which govern the grant of interlocutory relief before trial to protect the status quo. The appellant must show that the appeal raises serious issues for the determination of the appellate court, and that there is a real risk that he will suffer prejudice or damage, if a stay is not granted, which will not be redressed by a successful appeal. This requirement will be satisfied if the appeal will be rendered abortive or nugatory unless a stay is granted. If these pre-conditions are established the Court will then consider the balance of convenience. 1. In support of its application for a stay the appellant relied upon the errors alleged to have been made by the Tribunal and a witness statement of an employee of the managing strata agent for the scheme, Linda Klimczak, dated 17 November 2022. 2. That statement can be dealt with in short compass. It indicated that, relevantly, the appellant had obtained a mould report showing mould had been remediated in the lot, as evidenced by an attached "indoor environment assessment certificate" regarding the respondents' lot dated 7 June 2022. It further made an assertion that the resident respondent moved back into her lot on 21 June 2022, said to be supported by the attachment of an email from the resident respondent to the witness dated 12 July 2022 indicating, relevantly, the resident respondent's concerns that she has "been in my apartment for just over three weeks and once again I am having a reaction […] I cannot go through this again and cannot afford to live out of home." 3. That statement was admitted, without objection, for the purpose of the application for a stay. The respondents indicated that it would be objected to if sought to be relied upon in respect of the substantive appeal. 4. In support of the stay, the appellant submitted that the appeal would be rendered nugatory if the works which are the subject of the appeal are undertaken before the appeal is determined. 5. The appellant did not say that it should pay none of the damages awarded, but had not yet paid the unchallenged sum of $65,631.36. 6. Despite proceeding on the basis the appeal is arguable, I should record some issues in respect of its apparent relative merit because if the appellant can establish that the stay may be appropriate to secure the effectiveness of the appeal, and prospects of success of the appeal are so strong or overwhelming that the interests of justice could only be served by granting a stay, a stay would be the appropriate order: Wooldridge v Australian Securities and Investments Commission [2015] FCA 349 at [18]. 7. In oral submissions, the appellant focused on its allegation that it was denied procedural fairness by the Tribunal admitting evidence over its objection at the hearing. When asked, though, the appellant through the same solicitor who represented it at first instance confirmed that no adjournment was sought once the evidence was admitted. Nor did the appellant seek to put any new evidence before me to indicate that any practical injustice could be demonstrated by the appellant's inability to respond to the evidence filed out of time, if procedural unfairness could be shown. Given the decision to allow the amended scope of works and evidence was made at a hearing in April, that lack of evidence to demonstrate any practical injustice, which is unexplained, does not bolster the apparent relative merit of the appeal on this ground and is a weighty consideration in respect of the balance of convenience and weighing the competing rights of the parties. 8. The appellant also submitted, without it forming a ground of its appeal, that the Tribunal acted beyond jurisdiction in making an award for future damages, in the form of ongoing compensation for alternative accommodation for the resident respondent, contrary to language in s 106(5) SSMA which the appellant says limits the damages to those already "suffered," in the sense of having been actually incurred, to the date of order. Whilst that challenge was raised against compensation ordered from the date of hearing, on reflection during argument the appellant's representative acknowledged that it could not be the case that the award was beyond jurisdiction at least to the date the Tribunal handed down its decision, even if its own case on this point were to be incorporated into the appeal and accepted. 9. In argument, the appellant also acknowledged that it had already completed some of the works it now sought to be relieved from by way of the stay. The remaining works are the retiling and waterproofing of the bathrooms in the lot, and the mould remediation works recommended by the only mould remediation expert whose evidence was relied upon at the hearing at first instance. 10. The respondents opposed the granting of a stay. They point to the complete lack of evidence that the appellant cannot pay the judgement sum and the lack of evidence, or any assertion, that the amount if paid could not be repaid by the respondents if the appeal is allowed and a restitutionary judgement is entered. 11. In respect of the work orders, the respondents points to their updated expert evidence attached to an affidavit of the resident respondent which indicates that, after the remediation works undertaken by the appellant thus far, there is still a level of mould in the premises, described in that report by Dr Alexander Wilkie as "extremely high" in respect of there being spores detected in parts of the premises. The report notes that those spores are "known to be allergenic and produce mycotoxins". The report also indicates that the sampling taken indicates the presence of recent (as at June) active mould growth. 12. In respect of the challenge to the building works ordered in the bathrooms, the respondents say that the grounds of appeal are weak and other than in respect of the allegation of a denial of procedural fairness, the appeal will require leave. 13. The resident respondent attended the hearing, virtually. During the course of the hearing, the appellant's representative sought leave to cross-examine the resident respondent in respect of the application. I refused the application. Reasons for that decision were sought and will be dealt with below. 14. The resident respondent otherwise deposed to having removed herself from the lot in 2021, due to the detrimental impact of mould in the lot, moving to alternative accommodation for which she was charged weekly rental of $1100 and not having been reimbursed by the appellant in that regard. She went on to depose to the attempts made by the appellant's mould expert to remediate the mould and subsequent investigations by the expert retained by the respondents which, as far as she was concerned, indicated the mould had not been remediated. The affidavit otherwise dealt with the steps taken by the Owners Corporation to authorise the commencement of the appeal, which I will return to. Consideration 1. As a preliminary challenge to the appeal and application for a stay, the respondents sought to rely upon unchallenged evidence that the appointment of the appellant's solicitor to commence the appeal had not yet been approved in accordance with s 103 of the SSMA. The appellant's solicitor's costs agreement, which was put in evidence, estimates the cost of preparing and lodging the Notice of Appeal and Application for a Stay, through to conducting the application before me, would be in the sum of $6,270, and conducting the appeal to conclusion to be approximately $17,000. Under s 103(2) SSMA, approval of legal expenses totalling greater than $15,000 requires a resolution approving the obtaining of those services, passed at a general meeting of the Owners Corporation. A sum not exceeding $3000 may be expended to obtain legal services where the matter is urgent. Strata Schemes Management Regulation 2016 (NSW), cl 26. 2. The respondents rely on The Owners - Strata Plan No 70798 v Bakkante Constructions Pty Limited [2013] NSWSC 848, where Pembroke J found, at [72], [73], [79] and [80] that breach of the equivalent provisions of the now repealed Strata Schemes Management Act 1996 (NSW) invalidated proceedings where an appropriate resolution had not been passed. I disagree, however, with the respondents' submission that His Honour's reasoning is apposite to my considerations. In the SSMA, parliament inserted a provision, at s 103(4), which had no equivalent in s 80D of the repealed act. It provides as follows: (4) A failure by an owners corporation or the strata committee of an owners corporation to obtain an approval under this section does not affect the validity of any proceedings or other legal action taken by the owners corporation. 1. That provision, enacted after and potentially in contemplation of His Honour's decision, is framed in unambiguous terms and is sufficient for me to conclude that the proceedings, whilst irregularly commenced, are not invalid. 2. Subsequent to the hearing before me, and at my invitation, the parties provided evidence that the Owners Corporation has now ratified the lodgement of the appeal and engagement of lawyers. Whilst I accept the respondents' position that substantive relief might be withheld until that had occurred was arguable, I am satisfied the irregularity has been cured and see no impediment to the appeal proceeding on its merits (subject to leave as required) and me determining the application for a stay. The damages award to the date of decision . 1. The starting point is that the decision of the Tribunal at first instance is not to be treated as merely provisional. 2. I accept the respondents' submission that the lack of any evidence that the appellant cannot, without particular difficulty, pay the judgement sum, and of any evidence or even assertion supported by an available inference that it would not be repaid as required, is a proper reason to refuse a stay of the damages award: Kalifair; Lawrence v Gunner (No 3) [2016] NSWCA 18 per Gleeson JA, at [30]. 3. That is so despite the fact that I am satisfied that the appellant has established a clearly arguable case that the resident respondent's liability to pay for alternative accommodation ended by, at least, early June 2022, which is principally why I did not allow cross-examination on that point. 4. However, as I was asked for reasons for that decision, I must expose my reasoning on this issue more thoroughly. Cross-examination in interlocutory hearings 1. The legislation which governs the Tribunal's practice and procedure makes no provision for whether cross-examination should be allowed in interlocutory proceedings. On that basis, the Tribunal may determine its own procedure: NCAT Act, s 38(1). 2. Guidance as to how that discretion ought properly be exercised can be gained by reviewing the relevant considerations applied by courts. 3. Cross-examination in interlocutory applications generally is not to be encouraged: MW v Director-General, Department of Community Services [2008] HCA 12 at [46]. 4. In Ren v Giang [2014] NSWCA 1 Leeming JA said this at [11]: Cross-examination in support of an interlocutory application is not as of right but requires leave […] which leave is granted 'cautiously' and normally 'somewhat sparingly'; see the decisions collected and applied by Kenny J in Wu v Avin Operations Pty Limited (No.3) [2006] FCA 132 at [18]. It is common practice not to permit cross-examination at all in interlocutory matters; see, for example, Markisic v The Commonwealth of Australia [2010] NSWCA 273 at [31](Beazley & Young JJA). 1. A relevant factor will be the nature of the application, and whether it has the effect of determining the substantive relief in the proceeding: In the matter of Sunnyside Bettoni Pty Ltd [2020] NSWSC 1891at [4]; PG Nominees Pty Ltd v WBHO Infrastructure Pty Ltd [2020] VSC 48 at [32]. 2. In Matthews v SPI Electricity Pty Ltd [2013] VSC 422, Derham AsJ synthesised the relevant considerations derived from authority in the following terms at [28] and [29] (citations omitted): An examination of the authorities shows that the variety of circumstances in which it may be appropriate to allow cross‑examination varies according to the nature of the application and the facts of the case. The overriding principle is that of procedural fairness. There are, however, a number of factors that have been found relevant to granting leave to cross‑examine, as follows: (a) where the credit of the witness is important to resolving the interlocutory application; (b) the interlocutory application requires the establishment of material facts; (c) there is a relevant factual dispute which requires cross‑examination for its resolution; (d) the interlocutory application is unusual and it is difficult to know what issues will eventually be relevant. There are, of course, factors that will exclude or limit cross‑examination, including: (a) that the application is not made bona fide to test an issue of material fact on the interlocutory application, but rather to engage in a rehearsal of issues relevant to the trial; (b) the extent to which the pressure of the business of the Court permits cross-examination. (c) the factors referred above from the decision of Warren J in Yunghannes. 1. That list of relevant factors was further consolidated by Registrar Whitbread in NAUGHTON -v- GRC GROUP PTY LTD (IN LIQUIDATION) [2020] WASC 176, at [27]: The factors referred to in Yunghannes v Elfic Pty Ltd [2009] VSC 444; [2009] 25 VR 613, (Yunghannes), when incorporated into the above list, mean that [29] of Matthews should be read as stating that factors that will exclude, or limit, cross-examination include: (a) that the application is not made bona fide to test an issue of material fact on the interlocutory application, but rather to engage in a rehearsal of issues relevant to the trial; (b) the extent to which the pressure of the business of the Court permits cross-examination; (c) where, insofar as there are inconsistencies in the evidence, or allegations of recent invention, such matters can be dealt with in submissions; (d) the fact that it is undesirable (except in compelling circumstances) to permit a party to have the opportunity at an interlocutory stage to cross-examine an opposing party upon an issue of fact which goes to the core of the proceeding; and (e) that the Court would not be assisted by the cross-examination. 1. When the appellant's solicitor requested to cross examine the resident respondent, in accordance with common practice I asked him to identify the topic(s) on which he sought to ask questions. The appellant's solicitor confirmed that it was solely in respect of when the resident respondent resumed occupation of the lot. Leave to cross-examine was opposed by the respondents. 2. Putting the email from the resident respondent into evidence was sufficient to establish the appellant's point that it had a clearly arguable case that the resident respondent moved back into the lot in June. The respondents own submissions noted, at [9], that "…[t]he high levels of mould previously forced Ms Maister to move out of the unit. She should not have to do so again." The respondents had a forensic decision to make as to whether they sought to adduce evidence to rebut the appellant's evidence, and elected not to do so. 3. As stated by Lord Mansfield in Blatch v. Archer (1774) 1 Cowp. 63 at 65 (98 ER 969 at 970): All evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted. 1. In those circumstances, and where I had determined that the issue should be considered in a way favourable to the appellant but which could not properly found a stay of the damages award to the date of decision, I did not think it appropriate to allow cross-examination. It was not necessary that I make particular factual findings to determine the application for a stay, merely that I be satisfied the appellant had made out a prima facie case for the relief it seeks, or to put it another way, "that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief": Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1. 2. Notwithstanding my views as to a prima facie case on this issue, however, I should not be taken to indicate that the potential for error in the Tribunal's decision is so clear that it ought to have effectively mandated a stay of part of the damages award. 3. Had I needed to go on to determine the balance of convenience, there was still an obstacle facing the appellant, even if the Appeal Panel determining the appeal were to agree with my preliminary view that there is a clearly arguable case that the resident respondent resumed occupation of the lot by June 2022. That difficulty stems from a combination of the fact that the appellant challenges a factual finding, and the effect of cl 12(1)(c) of Sch 4 to the NCAT Act, which limits grants of leave based on further evidence in appeals from the Consumer and Commercial Division to cases where the Appeal Panel is first satisfied that the further evidence was not reasonably available at the time the proceedings at first instance were being dealt with. 4. Here, the evidence appears to have been available to the appellant since it was received on 12 July 2022. For that reason, whilst I was prepared to consider the stay on the basis that a factual error as to the extent the resident respondent incurred damages for alternative accommodation is clearly arguable, that does not inevitably mean leave to appeal is available to the appellant on this issue. For completeness, I note there is no suggestion the appellant applied to reopen its case when the email came into its possession. 5. Weighing those factors, the balance of convenience may still not have favoured a stay of part of the award of damages to the date of the decision. The issue was finely balanced, though, and if I had any evidence as to difficulty with the appellant's financial position or as to any inconvenience or prejudice that may be caused to other lot owners, for example in the need to call for special levies to pay, or resulting from payment of, the judgement sum, the exercise of my discretion would have required a difficult weighing exercise. On balance, I think an order affecting the damages award to limit the payment for alternative accommodation expenses to the end of June 2022, to allow for a further period where remediation works are required, would have been warranted. The order for ongoing damages for alternate accommodation 1. A similar position arises in respect of this order to my considerations as to staying the order for damages to the date of decision. However, had the appellant established the need for me to go on to consider the balance of convenience, a stay of this order would have been warranted, for the reasons I have already given. This particularly the case as the respondents' entitlement to this award has not yet been crystalised by calculation and order of the Tribunal. The order that the damages be paid from levies paid by lots, other than the respondents lot, proportionally to their unit entitlement 1. The appellant did not specifically address a stay of this order, even though it was sought. I am not satisfied it has demonstrated a stay of this order is appropriate to secure the effectiveness of the appeal, for reasons I gave in respect of the orders discussed earlier. The order for a relist for ongoing damages to be calculated 1. In respect of this order, somewhat different considerations apply. Whilst the order can be seen as a natural consequence of the order for ongoing damages, it can properly be said that an appeal affecting this order will be rendered futile if it is carried into effect prior to the determination of the appeal. The Tribunal ordered that any application to relist the proceedings for calculation of the ongoing alternative accommodation damages be made before 10 February 2022, which is prior to the hearing date I have set for the appeal. The relist process may also involve the parties in potentially wasted time and expense, if undertaken before the hearing of the appeal. Staying this order would allow the respondents to have greater time to consider whether to make a relist application, until after the appeal has been determined. It would also, however, prevent them making an application to crystalise by an order for a certain sum, and thereby recover, the ongoing damages award. The respondents oppose a stay or this order 2. As I can be satisfied the appeal from this order would be rendered nugatory if a stay is not granted, I may properly move on to consider the balance of convenience and rights of the parties. For the reasons I have set out above, I am satisfied that a stay of this order is warranted. The balance of convenience does not warrant the parties engaging in a process to calculate the ongoing damages or to enforce the order that they be paid, pending determination of the appeal. I will stay this order pending further order or determination of the appeal, whichever is the earlier in time. The work orders 1. Clearly, there is no point in my treating the retiling issue differently to the mould remediation. Mould remediation works performed before any structural issues allowing water ingress are addressed are likely to involve wasted effort and expense. 2. There can be no doubt that the appeal against the work orders will be rendered nugatory if I do not stay the relevant orders, which is a powerful factor in favour of a stay and requires me to go on to consider the balance of convenience and the competing rights and interests of the parties: Kalifair. 3. A further factor in favour of a stay is that, on my tentative view about whether the resident respondent is still incurring alternate accommodation expenses, the respondents will obtain a windfall on receipt of the judgement sum, which could initially be used to defray future alternate accommodation expenses until the appeal is determined. 4. There are, however, several factors auguring against staying these orders. Firstly, if the appeal succeeds the respondents may be forced to repay an amount otherwise used to pay for alternate accommodation between now and determination of the appeal. 5. Nextly, the weight of the evidence, even allowing for the further evidence of the appellant's mould clearance certificate admitted for this application, still tends toward a conclusion that the mould has not been remediated. In that regard I note the appellant's updated evidence is from an author whose qualifications, beyond being a director of a business named "Mould Werx", are not apparent. 6. To the contrary, the respondents' subsequent further report, whose author's expertise is exposed and could have been tested in cross-examination at the hearing had the appellant wished, details thorough testing and conclusions consistent with the Tribunal's findings. No proper explanation was proffered as to why the appellant did not seek to lead evidence from "Mould Worx" or someone else with relevant expertise at first instance, nor as to why it could not have sought to reopen its evidence to rely on the report it now tenders. The evidence will also now, in all likelihood, fall foul of cl 12(3) of Sch 4 of the NCAT Act in respect of a grant of leave. 7. Finally on this issue, I reiterate that despite the long history of the matter, the appellant has not otherwise sought to put any evidence before me demonstrating practical injustice from the procedural unfairness it alleges, in the form of evidence it would have given or the case it would have put, had the late amendment of the scope of works and supporting evidence not been allowed. Nor, importantly, has it sought to demonstrate by evidence the extent of the alleged prejudice to it in the Tribunal accepting the respondents' expert's scope of works, by demonstrating the likely cost of carrying out the respondents' expert's proposals. As was said in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, at 697, an applicant: …seeking the benefit of a stay and, if they are entitled to it, having shown a reason or demonstrated an appropriate case, they must still provide the court with material upon the basis of which the court can fix the terms of the stay that will be just to both parties" 1. On the other hand, given the Tribunal's decision should at this stage be taken to be correct, there must be the potential for ongoing use of the bathrooms, if that is occurring, to cause further or exacerbated problems related to mould in the lot and the respondents have a prima facie right to have the issue remediated in the manner found to be appropriate by the Tribunal. Even on the appellant's case, it took about four years from being notified of the issues for it to remedy the problems. 2. Weighing those issues, I am not satisfied I should exercise my discretion to stay the work orders. A stay in respect of costs 1. There is no current order for costs which can be stayed. Nor am I inclined to delay the determination of any costs applications made at first instance, even if I had power to do so, as it could cause bifurcated appeals and any costs ordered are unlikely to be recoverable, in a practical sense, before the appeal is determined. Orders 1. My Orders are as follows: 1. Order 7 made by the Tribunal at first instance is stayed until further order or finalisation of the appeal, whichever is the earlier in time. 2. The Application for a Stay is otherwise dismissed. 3. Any party or parties seeking an order for costs of the application for a stay are to lodge and serve an application for same in the form of an Application for Miscellaneous Matters, supported by submissions and evidence in support of the costs application, within 14 days of the publication of these orders. In the absence of any application, I will not make any order about costs, leaving the costs of the stay to be considered costs of the proceedings. 4. Any submissions and evidence in response to the costs application are to be lodged with the Appeal Registry and given to the costs applicant(s) within 14 days thereafter. 5. Submissions on the application for costs are not to exceed five pages in length. 6. The Appeal Panel may dispense with a hearing and determine any application for costs on the basis of the written submissions and evidence provided. If the parties oppose this course they should make submissions on this issue when complying with the directions as to their submissions on the substantive costs application. 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: 15 December 2022