Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gabriela v The Owners – Strata Plan No. 52108 [2024] NSWCATAP 224 Hearing dates: 18 July 2024 Date of orders: 11 November 2024 Decision date: 11 November 2024 Jurisdiction: Appeal Panel Before: K Ransome, Principal Member L Andelman, Senior Member Decision: (1) Leave to appeal is refused. (2) Appeal is dismissed. (3) The stay order made on 29 May 2024 is lifted. (4) Order 11 made on 16 April 2024 in matter 2024/00176670 is varied as follows: The Works referred to in Order 2 are to be completed by 10 February 2025. (5) Costs of the appeal are to be determined as follows: (a) Appellant to file with the Appeal Panel and serve on the Respondent submissions as to why costs should not be awarded (no more than 5 pages) by 14 days from the date of this decision. (b) Respondent to file with the Appeal Panel and serve on the Appellant submissions in reply (no more than 3 pages) by 21 days from the date of this decision. (c) The costs submissions of the parties are to identify whether an oral hearing on costs is sought, and if so, why. (d) Subject to consideration of the costs submissions of the parties the Appeal Panel may determine the issue of costs on the papers and without a further oral hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (e) Either party may apply in writing to vary or extend the timetable for the filing and serving of costs submissions. Catchwords: APPEALS – leave to appeal - procedural fairness – alleged failure to be served – evidence of service Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Strata Scheme Management Act 2015 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Dokas v Gallagher (No 2) [2024] NSWCA 236 Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 Gabriela v The Owners – Strata Plan No 51108 [2023] NSWCATCD Kudrynski v Orange City Council [2024] NSWCA 33 Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 The Owners – Strata Plan 52108 v Gabriela [2023] NSWCATCCD Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan 7 Naylor Paramatta Trust [2020] NSWCA 62 Wollondilly Shire Council v Styles [2024] NSWCATAP 104 Texts Cited: None cited Category: Principal judgment Parties: Sabrina Gabriela (Appellant) The Owners – Strata Plan No 52108 (Respondent) Representation: Mr Psiraki (Agent for the Appellant) STL Strata Title Lawyers (Respondent) File Number(s): 2024/00176670 Publication restriction: N/A Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 16 April 2024 Before: SM N Vrabac File Number(s): 2023/00366459 REASONS FOR DECISION 1. This appeal concerns issues of procedural fairness, particularly whether Ms Gabriela was served with documents initiating the proceedings before the Tribunal, submissions supporting the claim and details of the final hearing. 2. The decision under appeal was given ex tempore by Senior Member Vrabac on 16 April 2024 and Orders were published on the same day. Ms Gabriela did not attend the hearing. Ms Gabriela filed an appeal against the Orders made by Senior Member Vrabac on 9 May 2024. 3. No issues were raised in the appeal about the merits of the decision which concerned access to Ms Gabriela's Lot so that certain fire safety works could be carried out in compliance with the respondent's obligations under s106 of the Strata Scheme Management Act 2015 (NSW). Scope and nature of internal appeals 1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provides that an internal appeal from a decision of the kind in this appeal can be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. 2. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [24]-[40], the Appeal Panel set out the principles concerning questions of law within s 80 of the NCAT Act. An appellant is required to identify a pure question of law which then becomes the subject matter of the appeal: Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan 7 Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]; Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [12] and [14] summarising Orr v Cobar Management Pty Ltd [2020] NSWCCA 220. The question of law should be articulated with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Kudrynski v Orange City Council [2024] NSWCA 33 at [48], Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [28]. 3. 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. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 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 said, 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 (a) or (b) not occurred or if the fresh evidence under (c) had been before the Tribunal. 2. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. Grounds of appeal 1. Ms Gabriela states that she requires leave to appeal on the basis that the decision was not fair and equitable and was against the weight of the evidence. As confirmed at the appeal hearing, she raises the following as her grounds of appeal: 1. That she never received any notice of the respondent's application to the Tribunal and was not aware of the hearing; 2. That the respondent failed to attend mediation on 7 May 2024; and 3. That the issue had previously been dismissed by NCAT. 1. In Cominos v Di Rico [2016] NSWCATAP 5, at [13], the Appeal Panel noted that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [12] the Appeal Panel noted that where an appellant is not legally represented, it is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent. 2. In such circumstances and having regard to the guiding principle in s 36 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. 3. Where an appellant is not legally represented, "it may be appropriate to adopt a more generous or benevolent approach" in assessing whether the grounds of appeal identify a question of law or a basis for leave to appeal; Dokas v Gallagher (No 2) [2024] NSWCA 236 at [66] 4. The Tribunal is obliged to afford both parties procedural fairness: NCAT Act s 38(2). It is also to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: NCAT Act s 38(5)(c). A failure to afford a party procedural fairness is an error on a question of law: Prendergast at [13]. In our view, the matters raised by Ms Gabriela in respect of a lack of notification of the proceedings concern an alleged denial of procedural fairness and thus raise a question of law. 5. In relation to the other two grounds of appeal, these may also raise an error on a question of law if it is established that the Tribunal made an error with respect to its jurisdiction to determine the application before it because it was precluded from doing so because a preliminary step (mediation) had not been undertaken or because the matter had previously been finally determined. 6. The relevant background facts in relation to the three appeal grounds are as follows. First Ground of Appeal – No Notice 1. In regard to the first ground of appeal, there was no dispute between the parties that the correct postal address for Ms Gabriela is PO Box 2307 at Taren Point NSW 2228 (the PO Box). Mr Psirakis confirmed at the hearing that this continues to be Ms Gabriela's PO Box. 2. Before Senior Member Vrabac the respondent relied on three affidavits from Dana Alberto who is a solicitor employed by Strata Title Lawyers. 3. The first affidavit is dated 8 April 2024. Ms Alberto's evidence was that on 14 November 2023 at 4.30pm she sent a renewal application filed on the same day and document bundle to Ms Gabriela by placing an express post envelope in the Australia Post express post box located at the corner of York Street and Market Street in Sydney. The envelope was sent to the PO Box. She produced a copy of the Australia Post express post tracking details for the tracking number 0201001096382006050991 and a copy of the results produced by the Australian post website which showed that the that tracking number was "delivered" on 16 November 2023. Ms Alberto also gave evidence that on the same day an electronic copy of the renewal application and documents were sent to eight different email addresses which the respondent held for Ms Gabriela. On 20 November 2023 Ms Alberto sent the application and documents to Ms Gabriela by express post at her residential address. 4. The second affidavit is dated 9 April 2024. Ms Alberto's evidence was that on 15 January 2024 she sent submissions and documentation in support of the renewal application to Ms Gabriela by placing an express post envelope in the Australia Post express post box located at the corner of York Street and Market Street in Sydney. The envelope was addressed to the PO Box. On this occasion on the same day an electronic copy of the submissions and documents was sent to five different email addresses for Ms Gabriela. On 16 January 2024 Ms Alberto sent the documentation to Ms Gabriela at her home address by express post. 5. The third affidavit is dated 16 April 2024. Ms Alberto's evidence was that on 8 March 2024 she sent the final request for access to Ms Gabriela at four email addresses. On 11 March 2024 the request was sent to Ms Gabriela by placing an express post envelope in the Australia Post express post box located at the corner of York Street and Market Street in Sydney. The envelope was addressed to the PO Box. On the same day the request was sent by express post to Ms Gabriela's residential address. 6. Evidence given at the Tribunal hearing was that correspondence had been received by the respondent from one of the email addresses to which documents had been sent, albeit in an unrelated matter. Also before the Tribunal were the Tribunal's previous decisions in relation to the access orders which all noted that Ms Gabriela had not appeared before the Tribunal at the relevant hearings. 7. Before the Appeal Panel, the respondent relied on a further affidavit of Ms Alberto dated 18 July 2024. Ms Alberto's evidence was that on 9 July 2024 she sent the appeal submissions and documentation to Ms Gabriela by placing an express post envelope in the Australia Post express post box located at the corner of York Street and Market Street in Sydney. The envelope was sent to the PO Box. 8. On 15 July 2024, Ms Alberto received the envelope addressed to Ms Gabriela's PO Box with the words "RTS Box Closed". On the same day, she obtained a copy of the Strata Roll of Strata Plan No 52108 from Ms Goodwin the Strata Managing Agent of the Scheme. The Strata Roll confirmed that the address for service for Ms Gabriella the owner of lot 106 remained as PO Box 2307 Tarren Point NSW 2229. 9. At the hearing Mr Psirakis said on behalf of Ms Gabriela that she was not aware of the proceedings and had received no notices. He also disputed that documents were sent by email. Second Ground of Appeal – Mediation 1. In regard to the second ground of appeal, the mediation on 7 May 2024 was in regard to the non-payment of levies for Ms Gabriela's Lot. The mediation was scheduled after the matter the subject of this appeal was heard and determined on 16 April 2024. Third Ground of Appeal – Past dismissal of the complaint 1. As to the third ground of appeal, Ms Gabriela argues that the Tribunal has previously dismissed the application by the respondent. This case has a long and difficult history in this Tribunal, which we will not trace as it is adequately recorded in past judgements in The Owners – Strata Plan 52108 v Gabriela [2023] NSWCATCCD decided on 8 September 2023 and Gabriela v The Owners – Strata Plan No 51108 [2023] NSWCATCD decided on 10 November 2023. In past proceedings, the respondent had been successful in securing orders that Ms Gabriela is required to give access to her Lot to enable the respondent to carry out certain works in order to comply with a Sutherland Shire Council Fire Safety Order. However, the orders were unable to be implemented because Ms Gabriela refused access to persons engaged by the respondent. The respondent renewed the application for access in these proceedings. On the renewal application, Senior Member Vrabac made the orders sought by the respondent. Ms Gabriela lodged an appeal against these orders. Consideration 1. In regard to the first ground of appeal, Ms Gabriela's submission before the Appeal Panel was that she never received any documentation from the respondent regarding the case in the Tribunal. 2. Based on Ms Alberto's evidence we are satisfied that the respondent did properly notify Ms Gabriela of its application to this Tribunal and provided her with a copy of their documents and submissions and that she was aware of the proceedings before the Tribunal. The material was properly sent to the address listed on the Strata Roll, was sent to her residential address and was copied to various email addresses for Ms Gabriela at least one of which has been confirmed as working. We note that the working email address for Ms Gabriela is the address to which all correspondence for this appeal has been sent. The Tribunal's notice of hearing was sent to the PO Box. 3. We are satisfied that it was clearly open to the Tribunal on the basis of the evidence to conclude that Ms Gabriela was notified of the proceedings and the hearing date and to proceed with the hearing in her absence. As such there was no denial of procedural fairness and no question of law arises. 4. As to the second ground of appeal, the mediation is entirely unrelated to the matter that was before the Tribunal. The matter that was before the Tribunal was a renewal application in relation to Ms Gabriela's non-compliance with access orders previously made by the Tribunal. The mediation in a different matter did not impact on the Tribunal's jurisdiction to determine the application before it. 5. As to the third ground of appeal, Ms Gabriela is mistaken that the issue had been previously dismissed by the Tribunal. It is clear that access orders had previously been made by the Tribunal and these orders had not been overturned. 6. On 5 October 2023, Senior Member Titterton dismissed Ms Gabriela's application to set aside the decision and orders made by the Tribunal on 8 September 2023 and on 10 November 2023 made an order for Ms Gabriela to pay the respondent's costs. The decision was in regard to the same issue, which is access to Ms Gabriela's Lot to carry out various works including the respondent's obligation to comply with a Fire Safety Order. 7. Unfortunately for the other owners of Strata Plan 52108, failure to comply with the Fire Safety Order has meant that that the insurance costs have escalated, having to be borne by all owners. 8. We consider that the orders made by Senior Member Vrabac were fair and equitable and were based on the weight of the evidence before the Tribunal. There is no basis for a grant of leave to be given and the appeal is dismissed. 9. The respondent sought an amendment to the orders made by Senior Member Vrabac as the three months' timetable established on 16 April 2024 had passed. 10. Order 11 states that that: The Works referred to in Order 2 are to be completed within three months of the date of the orders being made. 1. The orders need to be amended for the Works, as defined in the orders to be carried out. The respondent submitted that a three month period from the date of this decision would be sufficient for it to organise people to complete the Works. We will make an order, amending order 11 to such effect. 2. The respondent in paragraphs [40] to [65] of its written submissions dated 8 July 2024 sought costs pursuant to s 60(3) of the NCAT Act. We consider that the written submissions adequately set out the reasoning, as such we will give an opportunity to Ms Gabriela to respond to the written submissions, taking into account this decision. The respondent will have an opportunity to reply to Ms Gabriela's submissions. Orders 1. We make the following orders: 1. Leave to appeal is refused. 2. Appeal is dismissed. 3. The stay order made on 29 May 2024 is lifted. 4. Order 11 made on 16 April 2024 in matter 2024/00176670 is varied as follows: The Works referred to in Order 2 are to be completed by 10 February 2025. 5. Costs of the appeal are to be determined as follows: 1. Appellant to file with the Appeal Panel and serve on the Respondent submissions as to why costs should not be awarded (no more than 5 pages) by 14 days from the date of this decision. 2. Respondent to file with the Appeal Panel and serve on the Appellant submissions in reply (no more than 3 pages) by 21 days from the date of this decision. 3. The costs submissions of the parties are to identify whether an oral hearing on costs is sought, and if so, why. 4. Subject to consideration of the costs submissions of the parties the Appeal Panel may determine the issue of costs on the papers and without a further oral hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 5. Either party may apply in writing to vary or extend the timetable for the filing and serving of costs submissions. ********** 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. 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