Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Samia v Foster & The Owners – Strata Plan No 67743 [2024] NSWCATAP 101 Hearing dates: 29 February 2024 Date of orders: 31 May 2024 Decision date: 31 May 2024 Jurisdiction: Appeal Panel Before: S Thode, Principal Member E Bishop SC, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. Catchwords: APPEAL — question of law — where owners corporation was dysfunctional — where the Tribunal appointed compulsory strata manager — whether the appellant was denied procedural fairness — whether there was bias — whether Tribunal excluded evidence which was admissible — no error of law — no issue of principle Legislation Cited: Strata Schemes Management Act 2015 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Pidgeon v Nagle [2022] NSWCATCD 61 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 Category: Principal judgment Parties: Mercy Samia (Appellant) Carolina Foster (First Respondent) The Owners – Strata Plan No 67743 (Second Respondent) Representation: Appellant (self-represented) Respondent (self-represented) File Number(s): 2023/00445711 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: 2023/00370257 Date of Decision: 06 December 2023 Before: L Wilson, Senior Member File Number(s): SC 23/47504 REASONS FOR DECISION Summary 1. The appellant appeals from a decision of the Consumer and Commercial Division of the Tribunal (Tribunal) of 6 December 2023 in matter SC 23/47504 (the Decision). 2. In the Decision, the Tribunal made orders under s 237 Strata Schemes Management Act 2015 (NSW) (SMAA) for the compulsory appointment of Strata Management Services Pty Ltd (SMS) as strata manager for the two lot strata scheme of which the appellant and respondent are owners. 3. While the owners corporation is a respondent in this appeal, it does not have a separate appearance in these proceedings as both members of that owners corporation have expressed their views. 4. For the following reasons, we have decided to refuse leave to appeal and dismiss the appeal. Background 1. The two lot strata has been the subject of three previous compulsory strata management orders of the Tribunal in 2017 and 2019 (with a previous owner of the respondent's lot) and in 2021. 2. From the numerous documents provided to the Tribunal it is apparent that there has been a history of dispute between the appellant and the other lot owner (both current and former). 3. On 23 October 2023 the appellant lodged two applications in the Tribunal: an interim application (case number SC 23/47505) and substantive application (case number SC 23/47504) that a compulsory strata manager be appointed immediately. Orders were made for the filing and exchange of evidence for the interim application which was heard on 24 November 2023. 4. At the hearing of the interim application, the parties and the Tribunal agreed that the owners corporation was "dysfunctional" and that a compulsory manager should be appointed. However, there was not agreement about which strata manager should be appointed under s 237 SMAA: the appellant wanted either Jamesons or Fresh Strata to be appointed but the respondent wanted SMS to be reappointed having already managed the strata from 12 October 2021 to 12 October 2023. 5. The Tribunal was ultimately unable to make orders for compulsory management at that hearing for the reason that both parties had not provided documentation which complied with s 237(4) SMAA and so the interim application was dismissed. We note in the reasons for decision on 24 November 2023, when referring to the requirement in s 237(4), the Tribunal indicated that the parties "really should include an ASIC company extract … in their evidence so I can see if the person who signs the consent is an officer of the company". 6. The Tribunal, with the consent of the parties, made orders in the substantive application (SC 23/47504) that the appellant and respondent lodge any documents (including "consent and proof of license" under s 237(4) SMAA) upon which they relied for the substantive hearing; submissions as to why their preferred strata manager should be appointed; and that they provide each other with a copy. 7. The parties agreed that the substantive application could be determined on the papers having already reached agreement that the owners corporation was dysfunctional. We also note that the Tribunal indicated to the appellant that if she wanted to rely on documents in the substantive application that she had previously filed in the Tribunal (such as a bundle of 56 pages of documents filed on 7 November 2023), she would need to provide them to the respondent and the Tribunal. 8. This Decision was made "on the papers" on the material that had been lodged by the parties by the date directed. The scope and nature of internal appeals 1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. Rather, to succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2). 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law has been applied; 4. Whether there was a failure to provide procedural fairness; 5. Whether the Tribunal failed to take into account relevant (ie mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there is no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from a decision made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17, 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." 1. In respect of a self-represented non legally trained appellant, in accordance with established appeal practice, grounds of appeal should be considered generally (subject to procedural fairness considerations) to determine whether a question of law has been raised (Prendergast at [12]; Cominos v Di Rico [2016] NSWCATAP 5 at [13]). We note most of the appellant's complaints appear to give rise to whether she was denied procedural fairness. 2. Accordingly, we have carefully reviewed the material and submissions put forward by the appellant and sought to give a beneficial construction to the grounds of appeal and submissions put forward. We have attempted where possible to distil the possible relevant contentions. Grounds of Appeal and materials 1. The grounds of appeal are set out in an attachment to the Notice of Appeal filed 8 December 2023. 2. The main reason the appellant said she was appealing was because the "decision was not fair and equitable". Although leave to appeal (or permission to appeal) was expressly not sought, the Notice of Appeal read with the annexure are in substance matters relevant to the grant of leave under cl 12(1) of Sch 4 of the NCAT Act. The reasons why the appellant contends the decision was not fair and equitable, against the weight of evidence, and what evidence should have been given more weight to – together are the bases upon which the appellant says she has suffered a substantial miscarriage of justice. 3. In her submissions filed on 31 January 2024, the appellant raised for the first time questions of law she contended arose on this appeal namely: (1) improper rulings; (2) errors in procedures; (3) exclusion of admissible evidence; (4) unfair disadvantage; (5) apprehended bias; (6) appointment without admissible evidence; (7) improper joining of respondents. She also provided a bundle of 172 pages of documents including the transcript of the proceeding below. 4. The appellant also filed reply submissions and additional materials on 21 February 2024 numbered pages 1 to 88. This included some additional material from Fresh Strata, notably a 16 page "Proposal for Compulsory Strata Management Services" dated 20 October 2023. 5. We were provided with the material that was provided to the Tribunal below by the appellant on 30 November 2023 (as referred to in the Decision as containing 36 pages); and by the respondent on 24 November 2023 (referred to in the Decision as containing 22 pages). We were also provided with another bundle of the documents from the appellant dated 7 November 2023 containing 56 pages which she had filed with the Tribunal in support of the interim application. 6. The respondent did not file a Reply to Appeal form but opposed the appeal giving reasons in written and oral submissions but mainly directed at why SMS is the appropriate strata managing agent to be appointed. 7. Numerous submissions and complaints were made by the appellant in writing and at the hearing about what occurred and was decided on 24 November 2023. It is important to note that the orders made on 24 November 2023 are not the subject of this appeal. We are considering the decision of 6 December 2023 which was a decision made on the substantive application and on the material that had been relied upon by each party before the Tribunal for that application. 8. We have addressed each of the appellant's grounds of appeal as they arise from her written submissions and will also deal with what we apprehend to be an application for leave to appeal as set out in the notice of appeal. Tribunal's Decision 1. In the Decision, the Tribunal set out the history of the matter including that there were two applications, the first having being dismissed on 24 November 2023, and the second substantive application (the subject of the Decision) being based solely on who was the appropriate compulsory strata manager to be appointed. 2. The Tribunal correctly recorded the appellant's first choice for a strata manager was O'Neill Strata Management Pty Ltd (O'Neill) and her second choice was Fresh Strata Pty Ltd (Fresh Strata), and that the respondent requested SMS remain the strata manager. 3. The Tribunal set out the relevant law being s 237 SMAA. We note for the purposes of this appeal that s 237(4) requires that the party who seeks the appointment of a particular strata manager provide the written consent of the agent to be appointed: Qualifications of person appointed A person appointed as a strata managing agent as a consequence of an order made by the Tribunal must-- (a) hold a strata managing agent's licence issued under the Property and Stock Agents Act 2002 , and (b) have consented in writing to the appointment, which consent, in the case of a strata managing agent that is a corporation, may be given by the Secretary or other officer of the corporation or another person authorised by the corporation to do so. 1. The relevant considerations for the exercise of the Tribunal's discretion are set out in Pidgeon v Nagle [2022] NSWCATCD 61 at [23] as follows and which we endorse: "[23] In making an appointment, relevant considerations of the Tribunal include: (1) That consent is provided by the proposed agent and holds the requisite licence as required by s 237(4) of the SSMA; (2) That the agent has the appropriate qualifications to perform the role of the administrator of the strata scheme and is able to exercise the powers granted in a manner that benefits all lot owners in the scheme and in accordance with the SSMA; (3) Whether the agent has any conflict of interest or previous association with the strata scheme that makes their appointment inappropriate in the circumstances; (4) Whether the agent has experience in acting as a compulsory managing agent, particularly in relation to addressing the circumstances giving rise to the appointment under s 237, namely: (a) any management issues arising from the strata scheme not functioning or not functioning satisfactorily; (b) any failure of the owners corporation to comply with a requirement imposed on it by an order made under the SSMA; (c) any failure of the owners corporation to perform one or more of its duties; or (d) the owners corporation owing a judgement debt which has not been paid (5) The proposed fee structure and the reasonableness of any fees; (6) Whether there are any other circumstances that make the appointment of the agent inappropriate. [24] Where more than one agent is proposed, the Tribunal may require further nominations or may make a decision to select an agent from the list provided. The selection between possible appointees involves a consideration of the factors above and a consideration of the interests of all lot owners that might be effected by the choice made. Ultimately, the Tribunal must be satisfied that the person appointed will be able to administer the strata scheme in a manner that addresses the reasons for appointment and facilitates the implementation of management processes necessary to correct any omissions or dysfunctionality of the strata scheme and return management to the lot owners at the conclusion of any period of appointment." 1. The Tribunal first noted that the parties agreed that the strata scheme was not functioning satisfactorily and had not been since 11 October 2023 when the last appointment of SMS expired. 2. The Tribunal then turned to consider the three proposed strata managers. Reference was appropriately made to the requirements of s 237(4). Crucially for the purposes of this appeal, the Tribunal considered that the consent requirement in s 237(4) was satisfied for O'Neill and SMS but not Fresh Strata. While the Decision refers to the licensee/manager not being able to consent on behalf of a strata manager that is a corporation, when read in context, the Tribunal was focused on evidence of authorisation to consent on behalf of the strata management company. In this regard, the letter from SMS expressly stated that the "undersigned is authorised by [SMS] to consent in writing to the appointment by the Tribunal of that company as a compulsory strata managing agent". This is to be contrasted with the consent letter which, although on Fresh Strata letterhead, is given by Mr Newmarch, the general manager/licensee-in-charge, purportedly in his personal capacity. Other than a few emails between the appellant and Mr Newmarch, a company extract for Fresh Strata and an almost illegible copy of a print out from Service NSW with Mr Newmarch's licence number, there was no other material in the 36 page bundle relied on by the appellant for the substantive hearing which appeared to demonstrate that Mr Newmarch was authorised to give consent on behalf of Fresh Strata. It was on this basis that the Tribunal was not satisfied on the material before it that Mr Newmarch had the authority of the corporation to sign the consent letter. 3. Accordingly, the Tribunal did not consider s 237(4) had been satisfied in relation to Fresh Strata and proceeded to the determine the issue of who should be appointed out of SMS and O'Neill. 4. In so doing, the Tribunal applied each of the considerations set out in Pidgeon v Nagle to reach the Decision weighing up the various considerations for and against the appointment of SMS and O'Neill. Notably, and although the appellant had argued to the contrary, the Tribunal said the numerous complaints raised by the appellant about the conduct of SMS as a strata manager were not clearly understood or substantiated by the evidence. 5. The Tribunal considered it was relevant that one of the strata managers at SMS had indicated he was glad that SMS did not get reinstated but that particular strata manager was not the relevant strata manager providing consent to the appointment. 6. The issue of fees was the subject of some dispute both before the Tribunal and again on appeal. The Tribunal determined that as the base rate for management fees of SMS was significantly lower than O'Neill's, this was persuasive to the decision particularly given the financial impact this difference would have. The appellant contended that SMS was not the cheapest if regard was had to the hourly charge out rates. 7. The Tribunal also had regard to other circumstances such as the change of location of SMS to North Sydney as compared with O'Neill at Bondi Junction. The proximity of the strata manager to the premises at Wollstonecraft and the time it would take to travel for a site visit was a factor the Tribunal had regard to (particularly when the hourly charge out rates may apply for inspections on site). Consideration of Grounds of Appeal Ground (1) – did the Tribunal make improper rulings such that the Tribunal misapplied its own directions and the appellant was denied procedural fairness? 1. The appellant says the Tribunal made improper rulings which was contended to have occurred by the Tribunal: (a) failing to comply with its own orders (purportedly requiring evidence in the form of an ASIC certificate to prove who at SMS was authorised to sign the consent letter) when it accepted the consent letter provided by the respondent which did not include an ASIC certificate nor was it signed by a director or authorised officer of the company; (b) refusing to refer back to crucial evidence and submissions provided by the appellant on 7 November 2023. 2. In developing this argument, the appellant made numerous complaints about the way the interim hearing on 24 November 2023 was conducted but also alleges that the Tribunal was ultimately dismissive of her evidence. It is to be recalled that at the interim hearing the Tribunal indicated the evidence was not satisfactory in respect of all three contenders for the respondent and the appellant which caused the Tribunal to dismiss the application. 3. In response, for the substantive application, the appellant withdrew Jamesons, proposed Fresh Strata as one of her two options and provided evidence about Fresh Strata in accordance with the timetable set. Yet the appellant contends that the Tribunal should not have allowed the respondent to similarly file fresh evidence about SMS on the substantive application and it was unfair to her. 4. Consequently, the appellant says the Tribunal could have appointed O'Neill on 24 November 2023 as the letter of consent was signed by a director (Mr O'Neill) and there was no other evidence. 5. This ground of appeal is misconceived and we reject it. 6. First, a large part of the complaint effectively amounts to a challenge to the orders made on 24 November 2023 which is not the subject of this appeal. 7. Further, we do not accept that the Tribunal required an ASIC search to be provided to prove authorisation. The appellant's complaints are premised on a misconception that the only way to comply with s 237(4) is to provide an ASIC record for the strata management company and then have the consent letter signed by an authorised person as listed on that ASIC search. While we accept an ASIC search was suggested by the Tribunal in the reasons for decision on 24 November 2023 to prove corporate authorisation in the circumstance of O'Neill (who did not have a licensee), it is not the only way to prove authorisation. The Tribunal was merely trying to give guidance about the types of evidence that would assist and was not setting a "condition precedent" as contended by the appellant. 8. The Tribunal was required to be satisfied on the evidence that the proposed strata managing agent company had consented to compulsory appointment. It was up to each of the parties to determine what that evidence would comprise. 9. Ultimately, in the exercise of its discretion, the Tribunal was simply not satisfied by the form of evidence given by Fresh Strata that Mr Newmarch was authorised to give the consent on behalf of Fresh Strata. Further, the documents provided by the appellant on 7 November 2023 for the interim application which included more documentation from Fresh Strata that the appellant complains was not considered, do not appear to have been before the Tribunal for the substantive application. It was up to the appellant to ensure she filed and provided to the respondent all material upon which she relied for the substantive application. From the transcript, the Tribunal made it abundantly clear to the appellant that her 7 November material would not be considered unless filed and provided to the respondent. Ground (2) – was there an error in procedure which meant the appellant was denied procedural fairness? 1. The appellant criticises the Tribunal by reference to the transcript from what occurred on the 24 November 2023. She says that because she provided the documents in relation to O'Neill which satisfied the requirement in s 237(4) at the hearing of the interim application, the Tribunal should have made the order on that occasion rather than deferring to the determination of the substantive application. 2. This is in effect an attack on what occurred on 24 November which is not the subject of this appeal. We reject this ground of appeal. Ground (3) – did the Tribunal exclude admissible evidence or, in other words, fail to have regard to evidence relevant to the dispute? 1. The appellant contends that the Tribunal disregarded the lack of alleged experience and incompetence of SMS including evidence she provided about the conduct of SMS at the expiry of their compulsory strata management period including: whether various meetings were held or should have been held; whether a legal online ballot was conducted; and whether they were remiss in acting on strata legislation and by-laws. The appellant contends on this appeal that SMS should not be the compulsory strata managers as they are not competent; they are the dearest; their reappointment will exacerbate the dysfunctional status (in fact the appellant blamed the respondent and SMS entirely for all dysfunction); they failed to manage the finances; failed to attend to outstanding repairs and maintenance; did not give her help with an insurance claim; took three months to fix a termite issue; their staff are rude and swap job titles; they frequently mismanage appointments with contractors and do not have a pool of competent tradesmen; they breached s 237 by failing to hold a meeting and did not hold an AGM; and they would not address unregistered easements. Some but not all of these complaints were also raised in the Tribunal below who correctly dismissed them as unsubstantiated. 2. Despite the appellant's allegations to the contrary, the Tribunal had regard to the evidence about SMS. As noted above, the Tribunal said the evidence was confusing and unsubstantiated – effectively it was not persuasive. While the appellant disagrees with the characterisation of competency on the part of SMS, the material about the previous engagement of SMS that was before the Tribunal demonstrated their capacity to deal with a very difficult situation over a number of years. There were dozens of emails from the appellant complaining about a range of things and which contained numerous unsubstantiated allegations to the effect that they were making errors in their management. We have reviewed the material and we would have come to the same conclusion as the Tribunal that the appellant failed to demonstrate with evidence that SMS did a bad job. It is to be borne in mind that SMS was the strata management company that the appellant wanted appointed in 2021 and the respondent consented to same. While the appellant is unhappy about SMS being appointed again, this is not a reason to refrain from making the appointment and we do not consider there was error of the type complained of by the appellant in the Tribunal's decision. 3. This ground of appeal is rejected. Ground (4) – did the appellant suffer an unfair disadvantage that gives rise to a question of law? 1. The appellant submitted that at the 24 November 2023 hearing, the Senior Member excluded her by having a conversation with the respondent and at one point, put her on mute so she could not speak. This, the appellant contends, unfairly disadvantaged her. 2. This complaint concerns the conduct of a hearing on 24 November that is not the subject of this appeal and we reject this ground. In any event, having reviewed the transcript it is apparent the appellant was constantly interrupting the Tribunal and the respondent and speaking over the top of them, making it extremely difficult for the hearing to run smoothly. Ground (5) – was there apprehended bias on the part of the Tribunal? 1. The appellant contends the Tribunal's eventual ruling was based upon errors of fact, conjectures and assumptions about how a lower socio-economic status and single motherhood impacted the respondent. This was said to be an opinion the Senior Member formed on incomplete information and consequently demonstrates bias in favour of the respondent. 2. We reject this ground of appeal and consider it has no merit. 3. The Tribunal was obliged to provide the appellant with procedural fairness: s 38(2) of the NCAT Act. As part of that obligation, the Tribunal was required to determine the application without bias or the appearance of bias. 4. The onus of demonstrating actual bias lies with the appellant as the party asserting it (French J in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 106 cited with approval by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [37]). It is a heavy onus to discharge and must be clearly proved with cogent evidence: Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97]. 5. In the context of courts, the test for apprehended bias is whether a fair-minded observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] (per Gleeson CJ, McHugh, Gummow and Hayne JJ). This is largely a factual question: Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [20]-[22] (per Kiefel, Bell, Keane and Nettle JJ). It is not about whether the decision make would not actually bring an impartial mind to the matter but whether a fair minded observer might reasonably apprehend that to be the case. 6. Having thoroughly reviewed the materials before us, we have not identified any evidence of actual bias of the Tribunal nor do we consider a fair-minded observer would reasonably apprehend that to be the case. 7. The Tribunal was correct to take into account the personal circumstances of both the appellant and the respondent in considering which strata manager to appoint. There was evidence about the respondent's personal circumstances substantiated by her employer: there was not similar evidence as to the circumstances of the appellant. Financial circumstances of the parties with respect to the costs of the proposed strata managing agents are highly relevant when assessing the cost of a strata management company. In finding that SMS was the cheapest option, the Tribunal was not biased – it simply weighed up all of the information, including that there was no evidence that SMS during the appointment had charged a lot for disbursements above standard inclusions and the assertion of the appellant that SMS was not the cheapest. 8. Further, we note that during this appeal the appellant repeated criticisms and derogatory comments about the respondent's status as a single-mother and her character including that she has misled the Tribunal. Such comments were irrelevant to this appeal, unsubstantiated and we have given no consideration to them. Ground (6) – was the appointment of SMS made without admissible evidence? 1. At the heart of this complaint is that the appellant considers the evidence relied upon by the Tribunal below about SMS (in particular the letter of consent) was not admissible because it was not compliant with s 237(4) SMAA. For the reasons we have already set out, that is incorrect. No question of law arises from the Tribunal's state of satisfaction with the evidence provided in respect of SMS. 2. We reject this ground of appeal. Ground (7) – was the owners corporation improperly joined as a respondent? 1. The decision to join the owners corporation as a respondent was made on 24 November 2023 and so does not form part of any order the subject of the appeal before us, but in any event, the Tribunal was correct to add the owners corporation as a respondent to any application under s 237. An order is made appointing or requiring the appointment of a strata managing agent to exercise the functions of the owners corporation and as such the owners corporation is the only relevant respondent to such an application 2. We reject this ground of appeal. Leave to appeal 1. Having dismissed each of the grounds of appeal, we turn to consider whether leave to appeal should in any event be granted under cl 12(1) of Sch 4 to the NCAT Act. 2. We do not consider that the orders made on 6 December 2023 was not fair or equitable or against the weight of evidence. Nor has any significant new evidence arisen that was not available at the time of the hearing on the papers. Rather, the material from Fresh Strata dated 20 October 2023 was available to the appellant to file in support of her substantive application and it may have assisted the Tribunal in establishing whether Mr Newmarch had authority to consent to the appointment of Fresh Strata. She did not file it. In any event, that evidence was not significant nor was it likely to have made any difference to the outcome. 3. We note that on 27 May the appellant sought to rely on further email correspondence with Fair Trading concerning SMS clearly with the object of demonstrating that they are not competent. We did not give leave for the filing of further evidence nor do we give leave now. In any event, that information would not have assisted the appellant's appeal. 4. For these reasons, we do not see a basis for the grant of leave to appeal in this matter. Orders 1. We make the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2024