Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Noor v The Owners - Strata Plan No 72939 [2023] NSWCATAP 236 Hearing dates: 31 July 2023 Date of orders: 24 August 2023 Decision date: 24 August 2023 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member J S Currie, Senior Member Decision: 1. The application for miscellaneous matters of the appellant filed on 6 July 2023 so far as it seeks to add ground of appeal 13 is dismissed. 2. The application for miscellaneous matters of the appellant filed on 19 July 2023 is dismissed. 3. To the extent necessary leave to appeal is refused. 4. The appeal is otherwise allowed. 5. The order dismissing application SC 21/38944 made on 22 May 2023 is set aside and in its place the following order is made: "Proceedings SC 21/38944 are dismissed so far as the claim of the applicant for damages for loss of rent." 6. The issue of whether the appellant is entitled to orders 2 and 3 in her undated statement filed on or about 3 December 2021 in proceedings SC21/38944 is remitted to the Consumer and Commercial Division of the Tribunal as originally constituted for reconsideration on the basis of the agreement of the parties or in the absence of agreement on the basis of the evidence of the parties and such further evidence as the Tribunal may allow. 7. The issue of whether the appellant is entitled to an order for damages except in respect of her claim for loss of rent is remitted to the Consumer and Commercial Division of the Tribunal as originally constituted for reconsideration on the basis of the evidence of the parties. 8. There is no order as to the costs of the appeal. 9. If any party wishes to make an application to vary order (6) above, the applicant (the costs applicant) must file and serve a costs application, including submissions limited to three pages and any evidence in support, on or before 14 days from the date of this decision. 10. The respondent to the costs application is to file and serve any submissions limited to three pages and any evidence in reply on or before 28 days from the date of this decision. 11. The costs applicant is to file any submissions limited to two pages in reply on or before 35 days from the date of this decision. 12. The parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the application being determined on the papers. Catchwords: APPEALS — Appeal on question of law – Scope of question of law APPEALS — Leave to appeal — Principles governing LAND LAW — Strata title — Owners corporation - maintenance and repair of common property - breach of obligation to maintain and repair common property – where lot affected by water leakage –action for work order and recovery of loss by lot owner from owners corporation pursuant to s 106(5) of the Strata Schemes Management Act 2015 (NSW) – whether action was time barred by s 106(6) of the Act Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 60, 80, 81, Sch 4, cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), rr 25, 38A Strata Schemes Management Act 2015 (NSW), s 106 Cases Cited: Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Jain v Dr N Kalokerinos Pty Ltd [2023] NSWCATAP 141 The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35 Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: None cited Category: Principal judgment Parties: Haidi Noor (Appellant) The Owners – Strata Plan No 72939 (Respondent) Representation: A Noor (Appellant) Grace Lawyers (Respondent) File Number(s): 2023/00179215 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 22 May 2023 Before: C Paull, Senior Member File Number(s): SC 21/38944 REASONS FOR DECISION Overview 1. This is an internal appeal from the decision of the Consumer and Commercial Division of the Tribunal made on 22 May 2023 in proceedings between Haidi Noor (Ms Noor), who is the owner of a lot in the strata scheme created by strata plan 72939, and The Owners - Strata Plan No 72939, which is the owners corporation responsible for the management of the strata scheme at Five Dock in New South Wales, in which the owner sought damages and a work order under the Strata Schemes Management Act 2015 (NSW) (SSM Act). The Tribunal dismissed the proceedings (the Tribunal Decision). 2. We have decided to the extent necessary to refuse leave to appeal, otherwise allow the appeal, set aside the order dismissing the proceedings and make an order in its place, remit specific issues to the Tribunal for consideration, and make no order as to the costs of the appeal. The factual background 1. The strata scheme is a residential complex. 2. Since 2014, the owner has owned lot 89 which has three bedrooms. 3. Disputes arose between the parties as to whether the owners corporation had breached the statutory duty under s 106(1) of the SSM Act and the owner had suffered loss as a result of this breach. The proceedings between the parties in the Tribunal 1. On 14 September 2021, the owner as the applicant commenced proceedings SC 21/38944 against the owners corporation as the respondent by filing a strata schemes application containing the following details under the heading "WHAT ORDERS DO YOU WANT?": "Section 106 (1) & (5) Section 232 (1)(a) & (e) compensation due to the owners corporation's continual breach of section 106 failure to rectify water ingress into the apartment causing severe mould to build up and make the entire downstairs uninhabitable. Compensation against levies paid and due as we have been reduced to a 1 bedroom apartment from 3, compensation for lost rental revenue for the bedroom and area affected, compensation for costs that have been incurred to reduce the water ingress. To affect immediate repair of water ingress and consequential damage and orders to pay for reasonable removal and storage of furniture while issue is being repaired." 1. On 10 May 2022, the Tribunal at a directions hearing granted leave to the owner to be represented by Alan Noor (Mr Noor), made procedural orders (the 10 May 2022 orders) and relevantly noted that the following relief was being sought by the owner: "Orders sought: The applicant confirmed today that the orders sought at the formal hearing are for compensation (arising from the claim that the respondent has breached its duty under section 106 of the Strata Schemes Management Act 2015) as follows: a) Compensation for loss of rent $14,171 for the period 20 Feb 2020 to 25 Feb 2021; b) Compensation (which the applicant has called aggravated/exemplary damages) in the sum of $5000 for exposure to mould; c) Compensation (which the applicant has called pecuniary damages) in the sum of $4671.37; d) Compensation (for preventative medical expenses) $4624.40; e) Costs associated with the proceedings $452.67;" 1. On 16 September 2022, 17 February 2023 and 22 May 2023, the Tribunal conducted the hearing, and at the conclusion of the hearing reserved its decision. 2. On 22 May 2023, the Tribunal made the following order (the 22 May 2023 dismissal order) together with procedural orders to determine the costs of the proceedings, and published reasons for its decision in the Tribunal Decision: "Application SC21/38994 is dismissed." 1. On 12 July 2023, the Tribunal made the following order (the 12 July 2023 costs order), and published reasons for its decision: "Applicant to pay the Respondent's costs immediately on a party party basis as agreed or assessed" The Tribunal Decision 1. In the Tribunal Decision, the Tribunal relevantly provided the following reasons: 1. noted the position of the owner as a lot owner and the owners corporation in relation to the strata scheme; 2. noted that there was no issue that flooding, for which the owners corporation conceded liability at the commencement of the hearing, had occurred and affected one of the bedrooms of the owner's lot; 3. noted that the claims for damages of the owner and that the hearing was limited to damages; 4. noted that the owner resides in the lot with her husband Mr Noor and child, and that, unless stated otherwise, the term "the applicant" is used interchangeably to refer to either the owner and Mr Noor; 5. set out the owner's case that in 2014 she and Mr Noor entered into an oral agreement whereby Mr Noor was to have exclusive use of a bedroom as an office and shared use of the bathroom and kitchen when working in the bedroom. In return Mr Noor would pay the outgoings of approximately $1000 per month, being all strata levies, council rates and water rates (the oral rental agreement). It was contemplated that Mr Noor would claim tax concessions for the outgoings he paid as "rent" in running his business, and the owner for tax purposes would claim a percentage of the outgoings in respect of her "rental" of the bedroom to Mr Noor; 6. found that there was insufficient evidence in support of the oral agreement: "There are no tax returns before the Tribunal for the periods the subject of the rental claim made in these proceedings ; no evidence of what tax returns, if any were lodged for this period; and no substantiated explanation as to the applicant's tax position and stance for this period. There is no evidence from the applicant's accountant. … Apparently the applicant's accountant was unwell. How serious this illness was and how matters have progressed for the tax period relating to the subject rent claim, have not been clearly explained or substantiated.…" 1. found that these matters reduced the credibility of the owner and lent some weight to the owners corporation's submission that the payment of the outgoings by Mr Noor was a "sham" from which the owner gained financial advantage in earlier tax years; 2. found that there are discrepancies between the redacted CBA bank statements (which were exhibit A2) and the unredacted CBA bank statements (which were exhibit A1). One example was the entry on 14 February 2015 recorded an "office rentals in the unredacted CBA bank statements and "expense" in the redacted CBA bank statements. There was an absence of any pattern of regularity to point to the oral rental agreement for Mr Noor to pay around $1000 per month rent to the owner; 3. found that these matters gave weight to the owners corporation's submission that the payments of the outgoings recorded in the CBA bank statements amount to no more than a domestic arrangement for the paying of day to day housekeeping expenses; 4. found that that there was no oral rental agreement and as the owner's claim rests on the existence of such an agreement, the claim must be dismissed; 5. allowed the owners corporation to re-open its case to tender a transcript of Local Court proceedings between the parties in which a claim for rental loss before the period claimed in these proceedings was dismissed: "In short, the Local Court dismissed the proceedings for rental loss and the applicant then brought the current proceedings, before the Tribunal, where the claim for rental loss was crystalised for a period post the one considered by the Local Court (as well as for other specified damages.) 1. having regard to the decision of the New South Wales Court of Appeal in The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35 (Tezel), found that the owner's case was out of time and the owner was required to have lodged a claim for all her loss including future loss in the one set of proceedings; 2. even if wrong about the effect of Tezel, the applicant's claim was dismissed for the other reasons given. The history of the appeal 1. On 5 June 2023, the owner as the appellant commenced proceedings 2023/00179215 against the owners corporation as the respondent as the respondent by filing a notice of appeal (the notice of appeal). The notice of appeal relevantly: 1. contained the following details under the heading "5 GROUNDS FOR APPEAL: 1. under the subheading "A: ORDERS CHALLENGED ON APPEAL": "Order made by Senior Member Paull on 22 May 2023 that 'Application SC 21/38944 is dismissed'." 1. under the subheading "B: GROUNDS OF APPEAL": "1. Senior Member Paull failed to consider, make any findings and/or make any orders about a substantive part of the application, namely; the Applicants request for orders that the Respondent do work to common property to remedy its the breaches of section 106(1) of the Strata Schemes Management Act 2015. That occurred when the Applicant specifically sought such orders and the Respondent conceded the breaches. 2. Senior Member Paull failed to consider, make any findings and/or make any orders about a substantive part of the application, namely; the Applicants request for orders that the Respondent do work to repair damage to her lot caused as a result its the breaches of section 106(1) of the Strata Schemes Management Act 2015. That occurred when the Applicant specifically sought such orders and the Respondent conceded the breaches. 3. Senior Member Paull failed to consider, make any findings and/or make any orders about a substantive part of the application, namely; the Applicants request for damages for consequential losses [being aggravated or exemplary damages] she suffered as a result of the Respondent's breaches of section 106(1) of the Strata Schemes Management Act 2015. That occurred when the Applicant specifically sought those damages and there was evidence to support them. 4. Senior Member Paull failed to consider, make any findings and/or make any orders about a substantive part of the application, namely; the Applicants request for damages for consequential losses [being for the cost of work to repair damage to her property] she suffered as a result of the Respondent's breaches of section 106(1) of the Strata Schemes Management Act 2015. That occurred when the Applicant specifically sought those damages and there was evidence to support them. 5. Senior Member Paull failed to consider, make any findings and/or make any orders about a substantive part of the application, namely; the Applicants request for damages for consequential losses [being for the cost of work to mitigate damage to her property] she incurred as a result of the Respondent's breaches of section 106(1) of the Strata Schemes Management Act 2015. That occurred when the Applicant specifically sought those damages and there was evidence to support them. 6. Senior Member Paull failed to consider, make any finding5 and/or make any orders about a substantive part of the application, namely; the Applicants request for damages for consequential losses [being for medical and other out of pocket expenses] she incurred as a result of the Respondent's breaches of section 106(1) of the Strata Schemes Management Act 2015. That occurred when the Applicant specifically sought those damages and there was evidence to support them. 7. Senior Member Paull wrongly dismissed a substantive part of the application, namely; the Applicants request for rental losses she suffered as a result of the Respondent's breaches of section 106(1) of the Strata Schemes Management Act 2015. 8. Senior Member Paull wrongly made a finding that the Applicant's rental arrangement with her husband was a sham against the weight of the evidence being against that finding and in the absence of positive evidence of the arrangement being a sham, including, but not limited to the following: (a) statement and oral evidence of witnesses averring to the existence of the rental arrangement; (b} documentary evidence establishing the existence of the rental arrangement; (c) findings by another Court between the parties about the existence of the rental arrangement; (d) making adverse findings against the Applicant concerning tax returns; (e) making adverse findings against the Applicant concerning redactions in bank statements; and (f) making a positive finding that payments to the Applicant were a domestic arrangement without any evidence to support it. 9. Senior Member Paull wrongly made a finding that the Applicant's claims under section 106(5) of the Strata Schemes Management Act 2015 were out of time by incorrectly applying the NSW Court of Appeal decision in The Owners - Strata Plan No 74232 v Tezel [2023] NSWCA 35 to the facts in this Application. That occurred despite the Applicant's first awareness of loss occurring in November 2019 and the Application being made in September 2021. 10. Senior Member Paull wrongly made an adverse evidentiary finding about the Applicant's failure to submit tax returns by determining that the Applicant's accountant was unwell and/or ill when the Applicant's evidence was that he had died. 11. Senior Member Paull wrongly made findings that were adverse to the Applicant's position and case against the weight of the evidence and when there was no or no substantive contradictory evidence, including, but not limited to the following: (a) treating the Applicant's husband as an Applicant; (b) treating the absence of tax returns as determinative of the existence of a rental arrangement; (c) determining the Applicant was not credible; (d) accepting the Respondent's submission that the rental arrangement was a sham without positive evidence to support it; (e) treating the redaction of bank statements as determinative of the existence of a rental arrangement; (f) treating the redaction of bank statements as determinative of the Applicant's credibility; (g) treating the alteration of bank statement entries as determinative of the Applicant's credibility; and (h) selectively relying on some material from proceedings in another Court between the parties but not other material. 12. Senior member Paull incorrectly made the order to dismiss the entire application when she did not address substantial parts of it at all and where there was evidence supporting findings in favour of the Applicant and admissions by the Respondent." 1. under the subheading "C ORDERS THE NCAT APPEAL PANEL SHOULD MAKE": "1. Revoking the order made by Senior Member Paull on 22 May 2023 that 'Application SC21/38944 is dismissed'. 7 The following other orders: 2. That the Respondent do all work necessary to repair the common property to stop water ingress into the lower level bedrooms in the Applicant's lot within 3 months of this order. 3. That the Respondent do all work necessary to repair the parts of the Applicant's lot and property damaged as result of water entry from common property within 3 months of this order, including but not limited to: (a) remove all mould including from internal cavities; (b) replace damaged gyprock; (c) replace large under window wooden kick panel; (d) repaint all damaged walls to match current colour scheme; (e) replace carpet in the righthand bedroom with equivalent carpet up to the value of $72 per sqm; and (f) professionally mould clean and wipe down the 2 bedrooms, hallway, bathroom, and staircase. 4. That the Respondent pay damages to the Applicant for the items in the affected rooms in her lot to be packed up, removed, and stored in an accessible location whilst the works in Orders 3 and 4 are performed unless the Respondent pays the costs itself. 5. That the Respondent pay damages to the Applicant for the following losses: (a) rental loss of $30,820.11 for the period from 20 February 2021 to 22 May 2023; (b) rental loss at the rate of $36.06 per day from 22 May 2023 until the works in Orders 3 and 4 are completed; (c) aggravated or exemplary damages for the loss of amenity of $7,856.87 for the period from 20 February 2021 to 22 May 2023; (d) repair costs of $8,150.19; (e) preventative remedial work costs of $4,624.40; (f) medical expenses of $[to be provided later]; and (g) other out of pocket expenses of $587.62. 6. That the Respondent's costs of this Application are paid by all the lot owners excluding the Applicant. 7. That the damages payable by the Respondent's to the Applicant are paid by all the lot owners excluding the Applicant. 8. Costs" 1. under the heading "6 LEAVE TO APPEAL" showed a cross in the box "Yes" adjacent to the question "Are you asking for leave?" and provided the following explanation together with detailed reasons under the headings "Decision not fair and equitable", and "Decision of the Tribunal against the weight of evidence": "The Applicant seeks leave to appeal the decision of Senior Member Paull on merit basis and relies on the reasons for the appeal in section 5C of this document as well as the following matters. 1. The hearing of the Application involved significant written, oral and documentary evidence on matter going to legal liability, damages and credibility over 2 hearing days. But, the decision failed to address most of that evidence. 2. Despite that Senior Member Paull did not make findings or orders about significant parts of the Application in relation to specific relief and factual matters. That remains necessary to properly address the Application. 3. Despite that Senior Member Paull made many findings on facts that were against the weight of the evidence and/or when there was no evidence to support the findings. 4. Senior Member Paull failed to take into account the Applicant's submissions about the Application, issues and evidence. These submissions are contained in Documents Al, A2, A3, A4, A5 & A6 of the Tribunal's file. 5. The Applicant alleges and will establish at the Appeal hearing that the written, oral and documentary evidence establishes very different matters than the findings made by Senior Member Paull that are favourable to the Applicant. 6. The failure to address matter going to legal liability, damages and credibility properly was not fair and equitable to the Applicant." 1. On 16 June 2023, the Appeal Panel constituted by a Principal Member relevantly made orders granting leave to the owner to be represented by Mr Noor and the owners corporation to be legally represented, and for the filing and service of evidence and submissions for the appeal. 2. On 26 June 2023, the owners corporation filed its reply to appeal (the reply to appeal). The reply to appeal relevantly: 1. contained the following details under the heading "3 REPLY TO GROUNDS FOR APPEAL: 1. under the subheading "A: ORDERS CHALLENGED ON APPEAL": "5 In respect to the dismissal of the claim below for alleged loss of rent (paragraph 5(a)), it is submitted the reasons for the decision in the Below Proceedings are correct, either for the primary reasons expressed by the Tribunal Member below and/or for the additional reasons expressed by the Tribunal Member below after granting the respondent's miscellaneous application to adduce further evidence. 6 In respect to the remainder of the claims before the Tribunal below: a. the aggravated/exemplary damages claim either falls away as the loss of rent claim was unsuccessful and/or was a duplication of the loss of rent claim; b. the pecuniary costs claim was not supported by any probative evidence; c. the preventative remedial work claim was expressly abandoned by the applicant and was also subject to an admission that the appellant had not suffered a loss; d. the disbursement claim was for the out-of-pocket expenses of the proceedings below, is subject to Section 60(1) of the Civil and Administrative Tribunal Act 2013 (NSW) and could not be awarded as damages 7 The Respondent opposes all grounds of appeal raised by the Appellants." 1. under the subheading "B: REPLY TO APPELLANT'S GROUNDS OF APPEAL": "8 The grounds of appeal are contained at Section 5B of the Notice of Appeal. Paragraphs 1 - 2 of Section 5B 9 These grounds of appeal are not open to the applicant and are misleading. The appellant abandoned any claim for a work order, firstly, before Senior Member De Jersey on 10 May 2022, and again on first day of hearing before Senior Member Paull on 16 September 2022. Paragraph 3 Section 5B 10 Contrary to the appellant's contention, the Tribunal Member below did make a finding/order. By dismissing the main claim for loss of rent, the claim for aggravated/exemplary damages fell away. ln the alternative, the claim for "aggravated/exemplary damages" was a duplication of the loss of rent claim and could not be awarded in any event. Paragraph 4 of Section 5B 11 This ground of appeal is not open the appellant as no such claim for "cost of repairs" was made in the below proceedings. Paragraph 5 of Section 5B 12 This ground of appeal is not open to the applicant and is misleading. In closing submissions on 17 February 2023 the appellant expressly conceded she had not suffered the alleged loss and abandoned this part of her claim. Paragraph 6 of Section 5B 13 In respect to the claim for alleged medical expenses, this was claimed under the heading "pecuniary costs". It is accepted the Tribunal Member below in her reasons for decision did not give express reasons for dismissing this aspect of the claim, however it is submitted this appeal ground should be dismissed as there was no evidence before the Tribunal below to substantiate the claim and upon which a compensation order in favour of the appellant could have been made. 14 In respect to "other out of pocket expenses", this ground of appeal is not open to the appellant as no such claim was made in the below proceedings. Paragraph 7 Section 5B 15 This does not disclose a ground of appeal and is argumentative. Paragraphs 8 of Section 5B 16 This ground of appeal challenges a series of findings of fact and requires leave of the Tribunal. Leave ought to be refused as it was open to the Tribunal Member below on the evidence before her to make adverse findings against the appellant (and her husband) and any one or more of the findings was sufficient to dispose of the alleged loss of rent claim. 17 To the extent it is relevant to the appeal, the respondent is making an application to the Local Court Assessor who heard the earlier cross-claim by the appellant to seek relief arising from the appellant and her husband misleading the Court and failing to disclose the redacted bank statements upon which they rely had been materially altered for a particular effect and evidence that certain payments were for rent were in fact not. Paragraph 9 of Section 5B 18 To the extent an appeal ground is disclosed, it is an appeal of a finding of mixed fact and law, for which leave is required. The fact the appellant was unsuccessful in an earlier Local Court proceedings for the same genus of loss does not reset the clock; to find otherwise would be contrary to the intent of Section 106(6) of the Strata Schemes Management Act 2015 (NSW). Further, the appellant commenced the below proceedings prior to any decision being made in the previous Local Court proceedings; by definition the "awareness" of loss causing the commencement of the below proceedings could not have been any finding made by the Local Court. Paragraph 10 of Section 5B 19 This ground of appeal challenges a finding of fact and requires leave. The relevant factual finding is not as expressed and, in any event, the alleged factual error is not one that would have made a difference so as to warrant the grant of leave. Paragraph 11 of Section 5B 20 This ground of appeal challenges a series of findings of fact and requires leave of the Tribunal. Leave ought to be refused as it was open to the Tribunal Member below on the evidence before her to make adverse findings against the appellant (and her husband). Further, the ground of appeal is argumentative. Paragraph 12 of Section SB 21 No ground of appeal is disclosed and this paragraph is argumentative." 1. contained the following details under the heading "4 REPLY TO LEAVE TO APPEAL: "22 Excluding grounds of appeal that are not open to the appellant and do not disclose a ground of appeal: a. paragraphs 8, 10, and 11 appeal findings of fact and require leave; b. paragraph 9 appeals a finding of mixed fact and law. 23 In its reply to the above paragraphs, the respondent has identified reasons why leave to appeal ought be refused. 24 In addition: a. The contentions in Section 6A of the Notice of Appeal do not address nor support the grant of leave and are generally argumentative; and b. There is no substantial miscarriage of justice considerations that would support the grant of leave." 1. On 6 July 2023, the owner filed an application for miscellaneous matters in which she sought leave to amend the notice of appeal by adding the following grounds of appeal in section 5B (the 6 July 2023 Noor application): "13. Senior Member Paull failed to consider, make any findings and/or make any orders about the Applicant's claim for damages for the period from the making of the application to the hearing. 14. In the alternative, Senior Member Paull wrongly decided to limit the Applicant's claim for damages up the time of making the application." 1. On 7 July 2023, the owner filed a bundle of documents (the owner's documents) and her submissions dated 7 July 2023 (the owner's appeal submissions). 2. On 10 July 2023, the owner filed her submissions dated 10 July 2023 in support of the 6 July 2023 Noor application (the owner's supplementary appeal submissions). 3. On 12 July 2023, the owners corporation filed its submissions dated 12 July 2023 in opposition to the 6 July 2023 Noor application (the owners corporation's supplementary appeal submissions). 4. On 19 July 2023, the owner filed an application for miscellaneous matters in which she sought leave to amend the notice of appeal by adding the following grounds of appeal in section 5B (the 19 July 2023 Noor application): "15. that the costs order issued on the 12th of July 2023 by Senior Member Paull be overturned and a new order issued for parties to cay their own costs. 16. Alternatively that the Appeal Tribunal Stay the judgment order until such time as they have made their findings." 1. On 21 July 2023, the owners corporation filed a bundle of documents (the owners corporation's documents) and its submissions (the owners corporation's appeal submissions). 2. On 28 July 2023, the Appeal Panel granted leave to the owner to amend the notice of appeal to add ground 14 referred to in [15] above. 3. On 28 July 2023, the owner filed her submissions in reply dated 28 July 2023 (the owner's appeal submissions in reply). 4. On 30 July 2023, the owner sent two emails to the Registry advising that she would be seeking leave to rely on additional documents (the owner's additional documents). The hearing of the appeal 1. On 31 July 2023, we heard the appeal. Mr Noor represented the owner. Mr P Ton, a solicitor, represented the owners corporation. 2. The owner relied on the following documents: 1. the notice of appeal; 2. the 6 July 2023 Noor application; 3. the owner's documents; 4. the owner's appeal submissions; 5. the owner's supplementary appeal submissions; 6. the 19 July 2023 Noor application; 7. the owner's appeal submissions in reply; 8. the owner's additional documents. 1. The owners corporation relied on the following documents: 1. the reply to appeal; 2. the owners corporation's documents; 3. the owners corporation's appeal submissions; 4. the owners corporation's supplementary appeal submissions. 1. The representative of the owner and the solicitor for the owners corporation each made oral submissions. 2. At the conclusion of the hearing, we reserved our decision. The scope and nature of internal appeals 1. Part 6 Division 2 (ss 80-81) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) contains provisions dealing with internal appeals. Section 80 deals with the making of internal appeals, and provides: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made— (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may— (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 1. Section 81 deals with the determination of internal appeals, and provides: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following— (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance. 1. 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 Sch 4 of the NCAT Act: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because— (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). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. 1. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act 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." (emphasis in original) 1. In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that: 1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. 2. In Collins, the Appeal Panel at [84] summarised the general principles which govern the granting of leave to appeal: "[84] The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) 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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there." 1. Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) relevantly provides that, in the case of an appeal from a decision of the Tribunal, an internal appeal must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision. 2. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos) at [13], the Appeal Panel stated that 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 to facilitate the just, quick and cheap resolution of the real issues in the appeal in s 36(1) of the NCAT Act, 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 preliminary matters 1. We are satisfied that the appeal was commenced within the time of 28 days prescribed under r 25(4)(c) of the NCAT Rules. 2. The following preliminary matters arise for determination in this appeal: 1. whether the owner should be granted leave to amend the notice of appeal; 2. whether the notice of appeal raises questions of law; 3. the nature of an appeal under s 80(2)(b) of the NCAT Act. Whether the owner should be granted leave to amend the notice of appeal Introduction 1. This preliminary matter concerns the 6 July 2023 Noor application and the 19 July 2023 Noor application. It is convenient to deal with these applications separately. As to the 6 July 2023 Noor application it will be necessary to refer to the conduct of the hearing before the Tribunal and summarise the submissions of the parties. The 19 July 2023 Noor application can be disposed of summarily because it is misconceived. The 6 July 2023 Noor application 1. In the 6 July 2023 Noor application, the owner seeks to add to the notice of appeal the failure of the Tribunal to determine a claim of $23,079.75 for damages for the period from 26 February 2022 to 22 May 2023 for the breach of s 106(1) of the SSM Act by the owners corporation, and relevantly provided the following explanation: "I have previously sought leave of the tribunal to add the additional compensation claims based on the additional year that had passed and to avoid any claim by the respondent of Anshun Estopple, I filed my request on the 8th of Feb 2023 for the final hearing date being the 17th of Feb 2023. At the hearing Senior member Paull did address the request for leave of tribunal to add the additional compensation claims but she rejected it after a lengthy discussion and objection from the respondent that they were denied procedural fairness in submitting evidence and ability to respond. The Respondent then submitted a Miscellaneous application filed on the of Feb 2023 to re-open the case to adduce more evidence therefore we submitted in my response to the Miscellaneous application another request seeking leave of the tribunal to then add the additional compensation costs for the hearing dated the 22nd of May 2023. The respondent had 2.5 months then to request any documentation, summons information and produce and submit evidence but they did not. Additionally Senior member Paull didn't address this request in the hearing either. So, we are now in a position whereby the Breach of s106(1) has still not been repaired by the Owners of 5P72939 and the mould conditions are still going, and my husband cannot still use the office. So, I am seeking leave of the Appeal Tribunal to add the additional compensation claims so as to ensure we are bringing all costs to the final hearing and not be put into a position of Anshun Estopple should we pursue the owners at a later date or out of time for the 2 year limitation. The Repair orders sought are still as per original NCAT application and in previous submissions which will be in the submissions to be filed on the 7th of July 2023 …" 1. On 17 February 2023, the Tribunal dismissed the application of the owner to amend her application to claim $13,161 for damages for the period from 26 February 2022 to 17 February 2023 for the breach of s 106(1) of the SSM Act by the owners corporation (Tcpt, 17 February 2023, p 7(29)-(48)): "SENIOR MEMBER: I've considered what everyone has said and I've considered the contents of the amendment. It's my view that we did spend a considerable and detailed amount of time on the first hearing date trying to clarify what was the evidence on which each party was relying. We spent also an equally long and lengthy, but I think productive time, trying to crystalise the claim as to where we stood, and the matter was well and truly on foot when we adjourned on the first hearing date. Why the additional issues which really seem to be more time related of wanting to bring ongoing claims until the date of determination of the hearing were not raised back in September, or really, were not raised for about five months afterwards, till 8 February, which is just over a week from this hearing, is not supported by any satisfactory explanation. I therefore reject the application for amendment and I think it would be unfair for the other side to allow that at this late stage, and the hearing must press on because it's been going on for a while now. As I said, we had a lot of time spent on important matters on the first hearing day in trying to clarify things. I think it's in the interests of everybody that we proceed today with the claim as it stood." 1. In the owner's supplementary appeal submissions, the owner submitted that the owners corporation had not rectified the water ingress to her lot and because Mr Noor was still unable to use the downstairs room as an office she was still losing out on the payments he was making. 2. In the owners corporation's supplementary appeal submissions, the owners corporation opposed the 6 July 2023 Noor application for the following reasons: "Firstly, the Appellant did not, on 24 February 2023 in the below proceedings, file a Miscellaneous Application seeking leave to amend the compensation claim in the Tribunal proceedings below. Instead, the Appellant tacked on a request to increase her compensation claim at the end of responding to the Respondent's Miscellaneous Application to adduce further evidence. Accordingly, there was no proper application before the Tribunal; Secondly, in any event, the tacked on application was a repeat of an earlier application by the Appellant made on the second day of hearing on 17 February 2023 (7 days earlier) to increase the compensation claim. That application to amend was denied by the Tribunal below on 17 February 2023 and it was argumentative of the Appellant to re-make the application. Having already rejected the same application, the Tribunal below was functus officio in respect to any further application. Enclosed is a copy of the transcript of the relevant part of the second day of the final hearing in which the Tribunal rejected the amendment application (page 7, lines 28 - 48). Thirdly, the time for the Appellant to appeal the Tribunal Member's decision below on 17 February 2023 to refuse the amendment application expired on 17 March 2023. No such appeal was brought and no grounds have been advanced in support of a grant of extension of time of some 4 months. Further, assuming the Appellant has a valid claim, she ought to have commenced fresh proceedings (which is what she was told by the Tribunal below); Fourthly, the Appellant's prospects of success on the further compensation claim are poor and does not warrant a grant of leave. Even on the Appellant's own case (which is disputed), she became of her loss by no later than November 2019 (see paragraph 9 of Section 5B of the Appellant's Grounds of Appeal). By the time of her purported application on 24 February 2023, the new claim was out of time by approximately 15 months as per the decision in The Owners - Strata Plan No 74232 v Tezel [2023] NSWCA 35; Fifthly, the grant of the leave sought will require both parties to put on evidence about the new claims and a contested factual hearing conducted. This would be a barrier to the appeal proceedings being heard and determined and will not result in a just, quick, and cheap resolution of the appeal and instead will substantially prolong and complicate the appeal." 1. We are not satisfied that the owner should have leave to amend the notice of appeal to add ground 13 because the owner is incorrect to assert that the Tribunal did not consider her claim for damages for the period from 26 February 2022 to 17 February 2023 for the breach of s 106(1) of the SSM Act by the owners corporation. The Tribunal on 17 February 2023 rejected the application of the owner for leave to add this claim to her application. 2. It follows that the 6 July 2023 Noor application so far as the owner seeks to add ground 13 to the notice of appeal should be dismissed. The 19 July 2023 Noor application 1. The 19 July 2023 Noor application is misconceived because the appeal is against the 22 May 2023 dismissal order, and does not extend to the 12 July 2023 costs order. 2. It follows that the 19 July 2023 Noor application should be dismissed. Whether the notice of appeal raises questions of law Introduction 1. The owner has not sought to identify any questions of law in the notice of appeal as specified in recent authorities: Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 at [58]-[59]; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 (Thomas and Naaz CA) at [26] (Leeming JA) (with Meagher JA at [1] and Griffiths AJA at [75] agreeing). 2. Having regard to the principles in Cominos at [13], we have given consideration to the Tribunal Decision and the documents relied on by the owner as to whether the notice of appeal raises questions of law. Consideration 1. If there has been a constructive failure to exercise jurisdiction there will have been error of law which can be addressed on an appeal limited to a question of law: Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 (Alexandria Landfill) at [22] (Basten JA). 2. Recently the Appeal Panel has decided that a conclusion of mixed fact and law cannot be challenged on an appeal as a question of law under s 80(2)(b) of the NCAT Act except in the circumstances where it can be determined that the conclusion proceeded from a misdirection of law: Jain v Dr N Kalokerinos Pty Ltd [2023] NSWCATAP 141 at [91]. This is to be distinguished from the wrong application of the correct principles to the facts that would be an error of mixed fact and law and an appeal would not lie on a question of law: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 (Bimson) at [42]-[45] (Beech-Jones J). Conclusion 1. We are satisfied that each of grounds of appeal 1 to 6 raise the following questions of law and accordingly the owner has an appeal as of right under s 80(2)(b) of the NCAT Act in respect of these grounds of appeal by reason of the application of principles in Alexandria Landfill at [22]: 1. as to ground of appeal 1, whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider her application for an order that the owners corporation repair the common property; 2. as to ground of appeal 2, whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider her application for an order that the owners corporation repair the damage to her lot; 3. as to ground of appeal 3, whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider her application for an order that the owners corporation is liable for aggravated or exemplary damages; 4. as to ground of appeal 4, whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider her application for an order that the owners corporation is liable for damages for the cost of work to repair damage to her lot; 5. as to ground of appeal 5, whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider her application for an order that the owners corporation is liable for damages for the cost of work to mitigate damage to her lot; 6. as to ground of appeal 6, whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider her application for an order that the owners corporation is liable for damages for medical and other out of pocket expenses. 1. We are not satisfied that that each of grounds of appeal 7 to 12 raise a question of law and accordingly the owner does not have an appeal as of right under s 80(2)(b) of the NCAT Act in respect of these grounds of appeal for the following reasons: 1. as to grounds of appeal 7 and 8, this is a not question of law as they involve the contention that the Tribunal made a wrong finding of fact; 2. as to ground of appeal 9, this is a not question of law as it involves a conclusion of mixed fact and law arising from the wrong application of the correct principles to the facts; 3. as to grounds of appeal 10 and 11, this is a not question of law as they involve the contention that the Tribunal made a wrong finding of fact; 4. as to ground of appeal 12, this is not question of law as it involves a generalised complaint about the 22 May 2023 dismissal order. The nature of an appeal under s 80(2)(b) of the NCAT Act 1. In Bimson at [40]-[41], Beech-Jones J made the following observations when considering an appeal under a statute which conferred a right of appeal "on a ground that involves a question of law alone": "[40] This leads to the second proposition, namely that, ultimately it is incumbent on the parties contending that a question of law was decided erroneously, to identify the question and to do so in abstract terms. Thus in Williams v R [1986] HCA 88; 161 CLR 278 at 287 ("Williams"), Gibbs CJ stated: "... there is 'a question of law alone' if the question of law can be stated and considered separately from the facts which it may be connected in a given case." (see also 314 per Wilson and Dawson JJ.) [41] If that task is undertaken, then the consequential questions that will arise are whether the lower court or tribunal either answered that question or proceeded on an assumption concerning that answer, whether its answer or assumption was correct or incorrect, and whether that answer or assumption was material to the outcome, in the sense that it could have affected the outcome (see Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 per Mason CJ; Mark Aronson and Matthew Groves Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013, at [4.270]))." 1. The Appeal Panel has determined that, except when it conducts a new hearing under s 80(3), an appeal under s 80(1) of the NCAT Act involves a rehearing in the sense of conducting a rehearing on the materials before the Tribunal to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error and, in some cases, has power to receive additional evidence. Although the appeal is described as being "by way of rehearing", it does not call for a fresh hearing and the Appeal Panel does not hear the witnesses again": Yuen v Thom [2016] NSWCATAP 243 at [14]-[22]. 2. We consider that the approach in Bimson at [40]-[41] should be applied in determining whether the Tribunal made an error on a question of law under s 80(2)(b) of the NCAT Act. If we are satisfied that the Tribunal made one or more material errors of law, then it will be necessary to determine whether to undertake a rehearing on the material before the Appeal Panel or remit the proceedings for further consideration by the Tribunal. 3. We consider that the approach in Collins at [76], [77] and [84] should be followed in determining whether leave to appeal should be granted in respect of grounds of appeal 7 to 11. If leave to appeal should be granted, then it will be necessary to determine whether to undertake a rehearing on the material before the Appeal Panel or remit the proceedings for further consideration by the Tribunal. The issues for determination in the appeal 1. The following issues arise for determination in this appeal: 1. issue 1: whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider the application of the owner for an order that the owners corporation repair the common property and the damage to her lot; 2. issue 2: whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider the application of the owner for an order for damages; 3. issue 3: whether the owner should be granted leave to appeal in respect of any one or more of grounds of appeal 7 to 11 and 14, and if so whether the appeal should be allowed and the 22 May 2023 dismissal order should be set aside; 4. issue 4: the costs of the appeal. Issue 1: whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider the application of the owner for an order that the owners corporation repair the common property and the damage to her lot Introduction 1. Before considering this issue, it is appropriate to set out the relevant evidence relating to the conduct of the hearing and summarise the submissions of the parties. The relevant evidence relating to the conduct of the hearing 1. On or about 3 December 2021, the owner served her undated statement (the undated Ms Noor statement) in which she sought the following orders (on page 4): "1. That the Tribunal find the Owners of SP72939 in breach of section 106(5) of the Strata Schemes Management Act 2015 (5) 2. That the Tribunal order that the Owners affect immediate repair of my unit (406) and if possible that of Peter Morphew's unit (408) 3. That the Tribunal order all consequential damage be repaired or replaced in the affected room such as carpet replaced, damaged gyprock cut out and replaced, damaged skirting and kick panel under the window replaced, all walls and ceiling cleaned to remove any settled mould spores, painting, removalists to remove all furniture belonging to the room and store it until repairs are completed. 4. That the Tribunal order that the Owners pay for the preventive measures taken by me to protect my apartment to reduce the amount of water ingress entering my apartment and that of apartment 407, before repairs commence to allow full access to the balcony and window area needed by the builders to effect repairs. This is outlined on pages 151 - 155 of this statement. 5. That the Tribunal confirm in its orders that I am exempt from costs, levies and any special levies that may arise if I am successful as per section 104 of the Strata Schemes Management Act 2015 (50); 6. That the Tribunal consider and approve my compensation claims included in this statement." 1. On 10 May 2022, at a directions hearing: 1. the following exchange took place between General Member De Jersey and Mr Noor (Tcpt, 10 May 2022, p 6(9)-(24)): "GENERAL MEMBER: ... What I want to know from the applicant and what I said before I asked you the question was, there doesn't seem to be indicated on any set of directions exactly what orders you're asking for. I want to know the orders that you're asking for on your substantive application. NOOR: The orders is to find that the owners corporation are in breach of s 106(1). GENERAL MEMBER: Yes, that's the declaration or a finding. I want to know what orders. What are you asking the Tribunal to order against the respondent?" 1. Mr Noor then proceeded to outline claims for damages totalling $28,959.44 (Tcpt, 10 May 2022, pp 6(26)-9(34)). 1. In her Outline Submission dated 6 September 2022, the owner relevantly stated: "I am seeking that NCAT find the Owners of SP 72939 are in breach of s106(1) of the SSMA 2015 and that they pay compensation under s 106(5) for loss of rent and that they also pay compensation for allowing us to continue to live in an unhealthy environment which has now caused us to have health issues …" 1. On 16 September 2022, at the commencement of the hearing: 1. the following exchange took place between Senior Member Paull and Mr Noor (Tcpt, 16 September 2022, p 15(37)-(44)): "SENIOR MEMBER: I just want to clarify why we're here today. We're here today because you're seeking the loss of rental of that one bedroom that you use as an office which you say you had an agreement with your wife to pay money in various forms by way of strata and you didn't pay it or your business didn't pay it because you stopped using the office, is that right, and that's the only reason we're here today? NOOR: That and other damages that we've suffered from-" 1. Mr Noor then proceeded to outline claims for damages (Tcpt, 16 September 2022, pp 15(50)-22(2)); 2. the following exchange then took place between Senior Member Paull, Mr Ton and Mr Noor (Tcpt, 16 September 2022, pp 22(4)-23(7)): "SENIOR MEMBER: That's given me a bit of an outline, thank you very much, I appreciate it. Can I just have an outline from you Mr Ton? TON: Yes. Can I say, I'll try to shorten things a bit. My client does agree that the work order can and should be made. SENIOR MEMBER: Does your client agree that it's in breach of its obligation to repair? TON: Yes. I'll explain. … SENIOR MEMBER: I have to find there's been a breach of its obligation? TON: Yes. SENIOR MEMBER: Do I have to go on and find that or are you saying there's a concession? TON: There's a concession from my side that a work order can be made today or at the end of the hearing for my client to engage contractors- SENIOR MEMBER: I don't have an application before me for a work order, do I? I just have an application for compensation. TON: If that's the case, then I'm happy just to say my client accepts it has to do work. SENIOR MEMBER: Tell me if I'm wrong, when I look at 106, it's an obligation on the owners corporation to repair and maintain common property. TON: Yes. SENIOR MEMBER: There's a sub-paragraph that says if they're in breach of that, there can be compensation claimed. TON: Yes. SENIOR MEMBER: I'm dealing just with the compensation claim. NOOR: Our application is- SENIOR MEMBER: Will you let me finish? NOOR: Sorry. SENIOR MEMBER: All I'm asking you, and it's a straight out question and it deserves a straight out answer. Do I have to hear evidence to find if there is a breach or is there a concession? There was a breach but there's a dispute as to the compensation claim? TON: There's a concession there's a breach. …" The submissions of the parties The owner's appeal submissions 1. In the owner's appeal submissions, the owner outlined the relevant evidence relating to the conduct of the hearing and submitted that she never abandoned, retracted, withdrew, or did not press the orders for repairs. The owners corporation's appeal submissions 1. In the owners corporation's appeal submissions, the owners corporation appeal made the following submissions: 1. the owner did not press the claim for a work order when asked to confirm what relief was being sought, firstly, before General Member De Jersey on 10 May 2022, and again on first day of hearing before Senior Member Paull on 16 September 2022; 2. it is correct that in opening submission there were comments about whether a work order could be made on terms which might be acceptable to the owners corporation (which is not the same as the what was originally sought by the owner), however the Senior Member below was correct to point out that as there was no work order being pressed she did not need to determine the issue. The Senior Member was also well within power to take such a course of action. The assertion the owner was cut off is opportunistic and is not consistent with what actually occurred as: 1. Mr Noor was only cut off as he was interrupting the Senior Member below; 2. it was open to the owner, after the Senior Member below had finished receiving the owners corporation's opening submissions, to advise she was seeking a work order, which she did not. Instead, Mr Noor pursued an application to exclude the owners corporation's evidence and otherwise proceeded with the hearing on the basis of a compensation only claim; 3. at the following hearing on 17 February 2023, Mr Noor did explain what he wanted to say, which related to the quantum of the owner's claim, and did not seek any alleged work order; 1. alternatively, the purported work order sought was so vague it was incapable of being made as explained in Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 (Glenquarry) at [104], [111]-[114]. Consideration 1. We are satisfied that the owner did not abandon her claims for orders 2 and 3 in the undated Ms Noor statement. It is unnecessary to determine whether Mr Noor was interrupted on 16 September 2022 in informing the Tribunal that the owner was seeking a work order. Notwithstanding that Mr Noor throughout the conduct of the hearing did not refer to a work order being sought by the owner, it was incumbent on the Tribunal in view of the statement of the orders being sought in the undated Ms Noor statement to ascertain whether they were still being pressed, particularly as Mr Noor was not a legal practitioner. By not considering these claims the Tribunal constructively failed to exercise its jurisdiction. 2. For this reason, grounds of appeal 1 and 2 are made out. 3. In Glenquarry, there was appeal to the Supreme Court of New South Wales relevantly against an order made by the Appeal Panel of the Tribunal for the replacement or repair certain specified parts of the common property in the following terms (at [100]): "[100] The order made by Senior Member Ross, and which is challenged by the majority owners, is in the following terms: (8) The Owners Corporation SP 17043 must, in a proper and workmanlike manner, on or before 31 August 2019, carry out repairs to the common property to: (i) Remove chimney stack on northern tiled roof (ii) Replace flashing on northern tiled roof (iii) Replace metal roofing and guttering on southern roof (iv) Replace the lift in the existing shaft and associated works (v) Repair the driveway bridge (vi) Repair or replace the brick ties and loose bricks (vii) Repair and paint the eaves (viii) Repair or replace and paint external timber (ix) Replace the balcony roof to unit 1 (x) Retile the driveway, main external entrance area and parking pad (xi) Paint and recarpet the main foyer and stairwell (xii) Replace both front doors and ground floor door with fire compliant glass (xiii) Replace the faulty intercom (xiv) Repair the path and drainage on ground level (section of western path outside unit 5) and repair broken gas pipe under western path (xv) Repair the seawall" 1. Parker J at [104], [111]-[114] made the following observations: "[104] As Senior Member Ross acknowledged, the orders did not specify the works in question. Orders in this form gives rise to two particular problems. The first is that the orders leave it unclear what it is that the Strata Corporation is being ordered to do. The second is that the order are not necessarily confined to complying with the Strata Corporation's obligations under SSMA s 62." "[111] Senior Member Ross appears to have considered that the majority owners are responsible for the impasse about repairing the building. But on any view the Tribunal is not entitled to order an owners' corporation to do things just because the Tribunal considers it desirable to do so. If, as seems to have been assumed, the justification for the order was that the Strata Corporation had not complied with its obligations under s 62, then the Tribunal's order could go no further than the minimum necessary to comply with that obligation. [112] In the present case, the Tribunal did not ask itself what needed to be done so as to order to achieve a minimal compliance with s 62(1) and then frame orders accordingly. In my view this means that there was no proper statutory foundation for the orders. [113] Furthermore, the orders are in the nature of mandatory injunctions. Such orders can be enforced (indirectly, under NCAT: Civil and Administrative Tribunal Act, s 73) by way of contempt. It is unacceptable that the recipient of the order should be in any doubt as to what is required. In my view, for the Tribunal to make an order giving rise to such a doubt is itself an error of law. [114] An adjudicator, and on appeal, the Tribunal, may have power to make an order that an owners' corporation carry out a defined repair in order to comply with its obligation under SSMA s 62. But the orders made in this case have been made in a form which takes them outside the limits of any such power. In truth, the orders are nothing more than a vague "wish list" from Ms Hegyesi. They should not have been made and must be set aside." 1. While we accept that the application of the principles in Glenquarry at [104], [111]-[114] means that it would be inappropriate to make orders 2 and 3 in the undated Ms Noor statement, we do not agree that it is appropriate to dismiss the appeal. In the exchange took place between Senior Member Paull, Mr Ton and Mr Noor 16 September 2022 Mr Ton conceded that a work order could be made. In these circumstances, it is appropriate to remit the issue of whether the owner is entitled to orders 2 and 3 in the undated Ms Noor statement to the Consumer and Commercial Division of the Tribunal as originally constituted for reconsideration on the basis of the agreement of the parties or in the absence of agreement on the basis of the evidence of the parties and such further evidence as the Tribunal may allow. Issue 2: whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider the application of the owner for an order for damages 1. We agree that the Tribunal did not consider the application of the owner for an order for damages except in respect of her claim for loss of rent. In so doing the Tribunal constructively failed to exercise its jurisdiction as none of these claims was dependent on the claim for loss of rent. 2. While we acknowledge that the owners corporation advanced submissions in the owners corporation's appeal submissions as to why these claims could not succeed, we do not consider that it is appropriate to make findings about these claims in this appeal. In these circumstances, it is appropriate to remit the issue of whether the owner is entitled to an order for damages except in respect of her claim for loss of rent to the Consumer and Commercial Division of the Tribunal as originally constituted for reconsideration on the basis of the evidence of the parties. Issue 3: whether the owner should be granted leave to appeal in respect of any one or more of grounds of appeal 7 to 11 and 14, and if so whether the appeal should be allowed and the 22 May 2023 dismissal order should be set aside Introduction 1. This issue is directed to the two findings of the Tribunal that there was no oral rental agreement between the owner and Mr Noor (which is the subject of grounds of appeal 7 and 8), and that the owner's case was out of time (which is the subject of ground of appeal 9). As grounds of appeal 10 and 11 relate to the finding that there was no oral rental agreement between the owner and Mr Noor, they do not need to be separately considered. Ground 14 relates to the claim for loss of rent for the period from 26 February 2022 to 22 May 2023. 2. The finding that there was no oral rental agreement between the owner and Mr Noor was based on insufficient evidence by reason of the absence of relevant tax records, the discrepancies between the redacted CBA bank statements and the unredacted CBA bank statements and the inconsistent evidence of Mr Noor in the Local Court proceedings. The owner contends that this finding was against the weight of evidence. 3. The owner contends that in finding that her case was out of time the Tribunal incorrectly applied Tezel. 4. As the finding that the owner's case was out of time if correct is a complete answer to the owner's claim for damages for loss of rent, it is appropriate to consider this finding first, and for this purpose we have summarised the relevant evidence and submissions of the parties. The finding that the owner's case was out of time The relevant evidence 1. The owners corporation relied on the following evidence in the affidavit of Victoria Parker sworn on 4 February 2022 as to proceedings 2020/00344681 in the Local Court of New South Wales (the Local Court proceedings): 1. on 4 December 2020, the owners corporation commenced the Local Court proceedings against the owner for unpaid levies, interest and costs; 2. on 9 March 2021, the owner filed a cross-claim (the Local Court cross-claim) claiming $19,855.00 including $105.00 for filing fees which included a document entitled "Evidence in support of cross-claim for Haidi Noor case number 2020-00344681" which relevantly provided: "… My Husband was paying me rental for that room to use as an office at a rate of $1000 net per month and due to the fact that he has had to subsequently use an external office I have lost that revenue as he has had to pay that to the company that has contracted (copy of the contract can be made available) him to do some work for them to use office space in their building. Since June 17th, 2019 until contract expiry 19th February 2021 which is 19 months and 3 weeks. His rental payments for the home office were directly paid to the strata levies account on my behalf and the payments can be proven via his business bank statements. … The Owners corporation have as I believe completely breached Section 106 (1) & (2) of the Strata Schemes management Act 2015 by failing to repair the common property water leak issue and were fully aware that in failing to repair that water leak that it would cause financial harm to both myself and my husband and I am claiming compensation for foreseeable cost under Section 106 (5) for the amount of net lost revenue totalling $19,750 and request the court to order that they fulfill their obligations under section 106 of the SSMA 2015 and confirm a date for repairs to be carried out that is mutually convenient." 1. on 11 October 2021, Assessor Keir dismissed the Local Court cross-claim. The submissions of the parties The owner's appeal submissions 1. In the owner's appeal submissions, the owner did not address ground of appeal 9. The owners corporation's appeal submissions 1. In the owners corporation's appeal submissions, the owners corporation appeal submitted that leave to appeal should be refused as the Tribunal correctly applied Tezel, and made the following submissions as to any factual challenge by the owner: 1. the owner in the Local Court cross-claim alleged she first suffered loss of rent on 17 June 2019; 2. the owner's contention she was not "aware" she had suffered a loss because the Local Court Assessor dismissed her earlier proceedings is a nonsense. The fact the owner was unsuccessful in the Local Court proceedings for the same genus of loss does not reset the limitations clock; to find otherwise would make a mockery of s 106(6) of the SSM Act. This is because on the owner's argument, every time a lot owner is unsuccessful on a s 106(5) claim they could argue that the clock had "reset" and make further claims. The relevant test is when the lot owner first becomes aware of the loss (irrespective of whether that loss is a continuing one): Tezel at [41]-[42]; 3. in any event, the owner cannot assert it was only after the Local Court decision that she became aware of her loss because she commenced the below proceedings on 14 September 2021, prior to any decision being made in the Local Court proceedings on 11 October 2021. By definition the "awareness" of loss causing the commencement of the below proceedings could not have been any finding made by the Local Court (which had yet to be decided). The owner's appeal submissions in reply 1. In the owner's appeal submissions in reply, the owner made the following submission: "I seek from the tribunal to grant leave to address these matters as I believe that Ms Paull did not address the substantive evidence put before her when considering her findings and judgement. The respondent is misleading the tribunal in its statements, firstly they retracted their claim of Anshun Estopple at the hearing held on the 16th of Sept 2022 when they realised that the compensation claimed was for a different period. Secondly, they have erred to provide the tribunal with the actual findings of the local court matter whereby I lost because I claimed the wrong period of time and the respondent was the one that showed I did not suffer a loss until 1st of November 2019 and thirdly they have failed to provide the tribunal with the Statutory declarations from my husband and myself, we provided both to the local court and the tribunal that actually outlines the oral agreement, the Statutory declarations provided to the tribunal were the same ones provided to the local court which preceded the NCAT application. The statutory declarations can be seen in the respondents Vol 1 on pages 71 to 74." Consideration 1. Section 106 of the SSM Act deals with the duty of an owners corporation to maintain and repair property, and relevantly provides: 106 Duty of owners corporation to maintain and repair property (1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation. … (5) An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation. (6) An owner may not bring an action under this section for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss. … 1. In Tezel, the New South Wales Court of Appeal decided an appeal which concerned the question of whether a respondent's claim against the applicant owners corporation for loss of rent was out of time by reason of s 106(6) of the SSM Act. Mitchelmore JA at [41]-[42], [45]-[47], [49] held (with Gleeson JA at [1] and Kirk JA at [58] agreeing): "[41] The time limit in s 106(6) of the SSM Act commences to run from the point that the owner "first becomes aware of the loss". Accepting, as both parties did, that s 106(6) is directed to actions brought under s 106(5), "the loss" to which s 106(6) refers is the loss suffered as a result of the owners corporation's contravention of s 106(1). Consistently with the approach to statutory construction that strives to give every word of legislative provisions work to do (see, for example, Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [39], [41]-[42], [76] and [79]) the question posed by s 106(6) is, put simply: when did the lot owner first become aware of the loss that s 106(5) entitles a lot owner to recover (subject to establishing the elements of the cause of action) – here, loss of rent? [42] The respondent's construction of "the loss" in s 106(6) was "the reasonably foreseeable loss that the owner is seeking to recover, that is, the loss referred to in s 106(5)" (emphasis added). As is apparent from the emphasised words, that construction conflates the loss that is the subject of the particular proceedings and the loss for which s 106(5) makes provision, and is circular in its effect. The requirement in s 106(5) that the loss be reasonably foreseeable is a form of remoteness limitation on what damages may be recovered. It is not part of the limitation period requirement in s 106(6). That provision refers to when the owner first became aware of the loss, not to when the owner first became aware the loss was reasonably foreseeable. The respondent's construction is thus not supported by the text." "[45] Both parties accepted that a breach of s 106(1) may be of a continuing nature. However, as Senior Counsel for the applicant submitted, it does not follow from acceptance of that possibility (which was the case here) that "the loss" occurs on a rolling basis so as to reset the point of first awareness. … [46] Noting the necessity to be careful about reasoning by analogy from differently formulated limitation provisions, the point that Senior Counsel for the applicant sought to make for the purposes of s 106(6) was that where the loss remained the same (here, lost rent), knowledge of that loss did not reset for each day that the breach continued. … [47] The differences of language on which the respondent relied, between the use of "loss" in s 106(5) and (6) and other provisions of the SSM Act which refer to actions for "damage to … property" (s 106(4) and s 132(1)) or "damage to a lot or any of its contents" (s 122(6)) and the approach in other limitation provisions (such as s 14(1)(b) of the Limitation Act), do not call for a contrary conclusion. Differences in language may have significance and should be given effect as a general proposition, but the differences do not assist the construction of s 106(6) for which the respondent contends. I accept the applicant's submissions in that regard." "[49] The construction of s 106(6) that I have adopted is consistent with its terms, read in the context of s 106 and in the broader context of the legislation of which it forms part. Applying that construction to the present case, the loss that the respondent suffered as a result of the owners corporation's breach of s 106(1) was lost rent. The time at which she first became aware of that loss was in 2016. The two-year period started to run from that point." 1. It is implicit in the Tribunal Decision that the Tribunal on the basis of the evidence of the Local Court proceedings found that the owner first became aware of the loss of rent on 19 June 2021. The two-year period specified in s 106(6) of the SSM Act started to run from that point. As the owner commenced the proceedings on 14 September 2021, her claim for damages for loss of rent was out of time. 2. Having regard to Collins at [76], we are not satisfied that the owner may have suffered a substantial miscarriage of justice on any ground in cl 12(1) of Sch 4 of the NCAT Act. The finding that there was no oral rental agreement between the owner and Mr Noor 1. In view of our decision with respect to the finding that the owner's case was out of time, it is unnecessary to consider the finding that there was no oral rental agreement between the owner and Mr Noor. Conclusion 1. Since none of the criteria in cl 12(1) of Sch 4 of the NCAT Act has been satisfied, we are not satisfied that the owner may have suffered a substantial miscarriage of justice. 2. Even if we had been satisfied that the owner may have suffered a substantial miscarriage of justice, then having regard to the matters in Collins at [84(2)], we would not have exercised the discretion under cl 12(1) of Sch 4 of the NCAT Act to grant leave to appeal against the 22 May 2023 dismissal order in so far as it relates to the owner's claim for damages for loss of rent. 3. So far as ground 14 is concerned, we accept the owners corporation's supplementary appeal submissions. The owner has advanced no submissions as to why the interlocutory decision of the Tribunal to refuse the application of the owner on 17 February 2023 was attended by sufficient doubt to warrant the granting of leave to appeal pursuant to s 80(2)(a) of the NCAT Act. Issue 4: the costs of the appeal Introduction 1. Each of the owner and the owners corporation submitted that they would wish to make submissions on the costs of the appeal. Consideration 1. Rule 38A deals with costs in internal appeals, and relevantly provides: 38A Costs in internal appeals … (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal. 1. For the purpose of r 38A of the NCAT Rules the amount claimed or in dispute is the amount in dispute on appeal, not the amount in dispute in the proceedings at first instance: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57]. 2. We are satisfied that r 38A(2) of the NCAT Rules is applicable to this appeal because the amount in dispute in the appeal is more than $30,000. It follows that the position of each party paying their own costs specified in s 60(1) of the NCAT Act is not applicable to the proceedings. 3. Each of the owner and the owners corporation have had some success in the appeal. We are satisfied that there should be no order as to costs of the appeal. 4. However, having regard to our decision in this appeal and the position of the parties, we have decided to make procedural orders in respect of the costs of the appeal. The disposition of the appeal 1. As we have found that the owner has been successful on issues 1 and 2, we have decided that the appeal should be allowed pursuant to s 81(1)(a) of the NCAT Act. As the owner has been unsuccessful on issue 3, we have decided that to the extent necessary leave to appeal should be refused. 2. The 22 May 2023 dismissal order should be set aside and in its place an order be made dismissing proceedings SC 21/38944 so far as the claim of the owner for damages for loss of rent pursuant to s 81(1)(d) of the NCAT Act. 3. As the Tribunal did not determine the issues of whether the owner is entitled to a work order and damages other than for loss of rent, we have decided that they should be remitted to the Consumer and Commercial Division of the Tribunal as originally constituted for reconsideration pursuant to s 81(1)(e) of the NCAT Act. 4. We have decided to make no order as to the costs of the appeal and procedural orders if any party seeks to vary this order. Orders 1. We make the following orders: 1. the application for miscellaneous matters of the appellant filed on 6 July 2023 so far as it seeks to add ground of appeal 13 is dismissed; 2. the application for miscellaneous matters of the appellant filed on 19 July 2023 is dismissed; 3. to the extent necessary leave to appeal is refused; 4. the appeal is otherwise allowed; 5. the order dismissing application SC 21/38944 made on 22 May 2023 is set aside and in its place the following order is made: "Proceedings SC 21/38944 are dismissed so far as the claim of the applicant for damages for loss of rent." 1. the issue of whether the appellant is entitled to orders 2 and 3 in her undated statement filed on or about 3 December 2021 in proceedings SC 21/38944 is remitted to the Consumer and Commercial Division of the Tribunal as originally constituted for reconsideration on the basis of the agreement of the parties or in the absence of agreement on the basis of the evidence of the parties and such further evidence as the Tribunal may allow; 2. the issue of whether the appellant is entitled to an order for damages except in respect of her claim for loss of rent is remitted to the Consumer and Commercial Division of the Tribunal as originally constituted for reconsideration on the basis of the evidence of the parties; 3. there is no order as to the costs of the appeal; 4. if any party wishes to make an application to vary order (6) above, the applicant (the costs applicant) must file and serve a costs application, including submissions limited to three pages and any evidence in support, on or before 14 days from the date of this decision; 5. the respondent to the costs application is to file and serve any submissions limited to three pages and any evidence in reply on or before 28 days from the date of this decision; 6. the costs applicant is to file any submissions limited to two pages in reply on or before 35 days from the date of this decision; 7. the parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the application being determined on the papers. ********* 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 Amendments 18 September 2023 - Coversheet – Orders 1 and 2, inserted. Paragraph 21, inserted. Paragraph 45 - end of sentence changed. Paragraph 45 (1), amended: beginning of paragraph deleted. Paragraph 45 (2), deleted. Paragraph 46 - "so far as…the notice of appeal", inserted. Paragraph 59 (3), amended - "and 14", inserted. Heading, "Issue 3:…" – "and 14" inserted. Paragraph 74, Last sentence of paragraph, inserted. Paragraph 89, inserted. 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: 18 September 2023