New South Wales Supreme Court CITATION : Buzrio Pty Limited v Consumer, Trader & Tenancy Tribunal [2009] NSWSC 836 HEARING DATE(S) : 12 March 2009, 13 March 2009, 3 June 2009, 25 June 2009, 15 July 2009 JUDGMENT DATE : 21 August 2009 JURISDICTION : Common Law JUDGMENT OF : Rothman J (1) The plaintiff was denied procedural fairness in the making of the order by the Consumer, Trader & Tenancy Tribunal on 23 May 2007 and 8 June 2007 in SCS 07/17221; (2) The interim orders of the Consumer, Trader & Tenancy Tribunal of 14 May 2009 in SCS 09/22490 be removed into this Court and quashed; DECISION : (3) The interim order of 15 June 2009 made by the Consumer, Trader & Tenancy Tribunal in SCS 09/22490, insofar as it purports to extend the appointment of a strata manager, be removed into this Court and quashed; (4) The proceedings in SCS 09/22490 otherwise be remitted to the Consumer, Trader & Tenancy Tribunal to be dealt with in accordance with law; (5) The parties have liberty to apply for a costs order, or special costs order, within 14 days of the date hereof. CATCHWORDS : ADMINISTRATIVE LAW – Consumer, Trader & Tenancy Tribunal – Strata Schemes Management Act – Owners Corporation – appointment of compulsory strata manager – lot owners not notified – denial of procedural fairness – interim orders specifying duration beyond statutory prescription LEGISLATION CITED : Consumer, Trader and Tenancy Tribunal Act 2001 Strata Schemes Management Act 1996 CATEGORY : Principal judgment CASES CITED : Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 Buzrio Pty Ltd (Plaintiff) Consumer, Trader & Tenancy Tribunal (First Defendant) PARTIES : Axiom Property Consulting Pty Ltd (Second Defendant) James Chan (Third Defendant) The Owners Corporation of Strata Plan 75633 (Fourth Defendant) FILE NUMBER(S) : SC 16302/2008 G Sirtes SC / J Knackstredt (Plaintiff) Submitting appearance (First Defendant) COUNSEL : N Potts (Second Defendant) No appearance (Third Defendant) M Bradford (Fourth Defendant) McLachlan Thorpe Partners Lawyers (Plaintiff) Crown Solicitor's Office (First Defendant) SOLICITORS : Dominic Sisinni & Co (Second Defendant) No appearance (Third Defendant) McGrath, Dicembre & Company Solicitors (Fourth Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST ROTHMAN J 21 AUGUST 2009 16302/2008 Buzrio Pty Ltd v Consumer, Trader & Tenancy Tribunal & 3 Ors JUDGMENT 1 HIS HONOUR: Buzrio Pty Ltd ("Buzrio") challenges the decisions of the Consumer, Trader & Tenancy Tribunal ("the Tribunal") appointing Axiom Property Consulting Pty Ltd ("Axiom") as strata manager for the Owners Corporation at 88-98 Marsden Street, Parramatta ("the Property") and seeks orders in the nature of certiorari, prohibition, declarations and other orders that seek to give effect to findings, for which Buzrio agitates, that the decisions were contrary to law, or made contrary to natural justice. 2 There are three decisions of the Tribunal that are the subject of challenge. The first was a decision of the Tribunal (Adjudicator Turley) of 23 May 2007 ("the first Tribunal decision"). This decision was purportedly for an appointment for a period of 12 months. On 8 June 2007, following a request by Axiom, the Tribunal extended the appointment period for a further 12 months. 3 The second decision of the Tribunal that is subject to challenge, is an interim order, purportedly pursuant to s 162 of the Strata Schemes Management Act 1996 ("the SSM Act"), made by an Adjudicator on 14 May 2009 ("the second Tribunal decision") and was operative until such time as the substantive application was determined. The substantive application, referred to here, was an application for a further appointment of Axiom as strata manager. 4 The third challenged decision was made on 15 June 2009 ("the third Tribunal decision") and purported, notwithstanding the terms of the earlier interim order, to extend the earlier interim order (to the extent that it required extension), made on 14 May 2009, until such time as the Tribunal determined the aforesaid substantive proceedings, which, by that time, had been referred from the Adjudicator to the Tribunal. 5 The principal of Buzrio, the developer, is Mr Jim Selim and Buzrio continues to hold units in the Property. Mr James Chan, the third defendant, also holds units in the Property. Mr Chan, notwithstanding his status as a defendant in the proceedings, did not appear in the proceedings and was not represented. The Tribunal submitted to any order of the Court, save as to an order for costs. Axiom and the Owners Corporation each appeared, through separate counsel, and opposed the making of any orders in relation to any one or all of the decisions of the Tribunal. Facts 6 With the exception of essentially two matters, relating to notice of the proceedings that gave rise to the first Tribunal decision and the issue of credit, the facts are within narrow compass. As one would expect in an application for orders in the nature of prerogative writs, the issues of fact have been settled in the proceedings that are subject to challenge or are subject documentation, which is unchallenged and/or unchallengeable. 7 Buzrio purchased and developed the Property and commenced selling units in the Property in about 2003. The initial sales of units were sales "off-the-plan". Major construction at the Property concluded in about April 2004 and the Property was converted into strata title on or about 27 December 2005. 8 On 10 January 2006, the Owners Corporation appointed True Strata as the strata manager. By 31 August 2006, one third or more of the units in the Property had been sold and True Strata gave notice of an inaugural Annual General Meeting of the Owners Corporation. In accordance with that notice, the inaugural AGM was held on 21 September 2006, and it confirmed the appointment of True Strata as the strata manager of the Property. By letter dated 14 February 2007, True Strata gave notice that they would no longer be practising as a strata manager and tendered their resignation. It seems that resignation was tendered to each of the lot owners at the Property. At the same time as tendering their resignation, True Strata purported to call an extraordinary general meeting for 1 March 2007, the agenda for which was the acceptance of the termination of the services of True Strata and the appointment of another strata manager, nominated by True Strata. 9 On or about 23 February 2007, there was a meeting of Mr Chan, Ms Jenner Chan and Mr Paul Gonsior. At this time, Mr Chan was the secretary of the Owners Corporation. Mr Chan described this meeting as an Executive Committee meeting, although Mr Gonsior was, he says, unaware of its status as such. That purported Executive Committee meeting resolved that True Strata was not performing its duties and obligations, accepted the resignation of True Strata and purported to appoint Axiom as a temporary strata manager, at least until such time as a strata manager could be appointed by the Tribunal. The meeting also purported to appoint a solicitor to lodge an application to the Tribunal for the appointment of a strata manager and to make submissions in support thereof. Ms Jenner Chan was and is a director of Axiom and the licensee in charge of its strata management activities. 10 It is unnecessary for the Court to detail the disputes between the lot owners and the complaints about the management of the Property by True Strata, or the later complaints about Axiom. It is notorious that there are differences of interest between developers, who continue to hold units in a residential block, and the owners who have, generally, purchased units from them. None of the details of those complaints are relevant to the determination of the issues in these proceedings. 11 On 26 February 2007, Mr Chan wrote to the lot owners cancelling the Extraordinary General Meeting that had been called by True Strata. After a series of telephone conversations between Mr Gonsior and Mr Chan, Mr Gonsior called a meeting of the Executive Committee, by e-mail, purportedly with the authorisation of Mr Chan, and the Executive Committee purported to meet on the same day, 23 March 2007. During the course of the meeting, Mr Gonsior spoke to Mr Chan by telephone, during which conversation Mr Chan indicated that he was not interested in attending the meeting. On 26 March 2007, Mr Chan wrote to the members of the Executive Committee informing them that, contrary to the advice they had received, he had not authorised the calling of an Executive Committee meeting on 23 March 2007, or at all. 12 On the same day as the Executive meeting, 23 March 2007, Mr Chan lodged an application with the Tribunal for the appointment of a compulsory strata manager for the Property. On 29 March 2007, the Tribunal sent a letter to Mr Chan and to the Owners Corporation inviting submissions on the application lodged by Mr Chan. The evidence clearly indicates, and/or the only inference available, is that these were the only two notices, sent by the Tribunal, inviting submissions on the application of Mr Chan. 13 On 23 May 2007, the Tribunal made orders appointing Axiom as compulsory strata manager for the Property, for a period of 12 months (the first Tribunal decision). On 31 May 2007, Axiom wrote to the Tribunal requesting that the orders made on 23 May 2007 be amended. On 8 June 2007, the Tribunal amended the orders of 23 May 2007, the effect of which was to extend the period of compulsory strata management from 12 months to 2 years. 14 On 12 June 2007, Buzrio and other lot owners were advised for the first time that Axiom had been appointed compulsory strata manager of the Property. This advice came from Axiom. On 29 June 2007, Axiom sent the lot owners a copy of the orders made by the Tribunal on 23 May 2007. 15 On 26 July 2007, Buzrio lodged an application in the Tribunal seeking to have the first Tribunal decision set aside. There was some correspondence between some lot owners and the Tribunal complaining about the process for the appointment of Axiom. Axiom had fixed strata levies and, it seems, Buzrio had not paid the levies. Axiom commenced proceedings to recover the levies from Buzrio and there was correspondence between the parties. 16 On 31 March 2008, Buzrio lodged an application in the Tribunal for the revision of the strata levies that had been imposed by Axiom. On 8 April 2008, according to Buzrio, it learnt, for the first time, that Axiom's term as the compulsory strata manager had been extended to a term of two years. On 19 May 2008, Buzrio consented to the dismissal of its Tribunal application of 26 July 2007, referred to in [15] above. On 12 September 2008, the Tribunal dismissed Buzrio's application of 31 March 2008. There were further disputes between Buzrio and Axiom concerning unpaid levies. On 23 January 2009, Axiom obtained judgment against Buzrio for unpaid levies. 17 The proceedings in this Court were heard, initially, on 12 and 13 March 2009. During the course of those proceedings, Axiom produced in the Court an application by Mr Chan to the Tribunal, dated 12 March 2009 (Exhibit 3), being a substantive application for the reappointment of Axiom as the strata manager. Buzrio filed submissions in opposition to the application. Those submissions were filed on or about 21 April 2009. Axiom, Mr Chan, the Owners Corporation, and 56 lot owners also filed submissions to the Tribunal in relation to that application. On 14 May 2009, Buzrio, through its solicitors, fortuitously learnt that an application had been made for an interim order. On or about 15 May 2009, Buzrio's solicitors requested the Tribunal to allow Buzrio the opportunity to provide submissions and be heard in relation to the interim application. On the same day, the Tribunal informed them that the file had been closed and interim orders had already been made. 18 Buzrio's solicitor applied to have the substantive application, filed on 12 March 2009, referred from the Adjudicator to the Tribunal. The Adjudicator referred the matter to the Tribunal and, at the same time, made an interim order, or a further interim order, appointing Axiom as compulsory strata manager. Notice of Proceedings and Evidence of Mr Chan 19 As earlier stated, there is little dispute as to the facts. The foregoing is relatively uncontroversial. Controversy exists as to the fairness and equity of levies and the confidence of either one or both of the strata managers. Those matters are not relevant to these proceedings. There is some controversy as to the notice given to lot owners of the application to the Tribunal for the appointment of a strata manager, and the notice given of the application, or correspondence, seeking to extend that appointment for a further 12 months. It seems that there is much, even on these issues, that is relatively uncontroverted. The controversy turns on the notice given, and the means by which that notice was given, and turns on the evidence of Mr Chan. 20 Buzrio adduced evidence that no notice was given of the application to appoint a strata manager, nor of the application for extension. Mr Chan gave evidence to the opposite effect, at least in part. It is necessary to make some comments on the demeanour of some of the witnesses. 21 Mr Gonsior gave evidence, called by Buzrio, largely concerning the meetings that were called and notices that were given. His demeanour, the manner in which he answered questions and the probability that those answers are correct, gave the impression that he was reliable, honest and truthful. It is clear that there were some occurrences that, at the time, he did not, because of his lack of guile, fully comprehend, but it seems that he now understands what was happening. 22 Buzrio also called Mr Noh, whose first language was not English. Mr Noh had an extremely good recollection of events, had, in relation to some of those events, made contemporaneous notes, and gave the impression of being very honest, very reliable and very detailed. Possibly because his first language was not English, Mr Noh was very precise in the answers that he gave and in seeking explanations of the questions that were asked. He attested to the lack of a noticeboard, anywhere on the Property, and I accept his evidence. 23 Axiom called its principal, Mrs Chan. Amongst other things, she testified that she was not aware that Mr Selim was the principal of Buzrio and was not aware of the names of any tenants. She could not recall an application to replace her firm as strata manager, could not recall the application by Buzrio to the Tribunal and could not recall whether Axiom opposed the application on the basis of the standing of Buzrio. Mrs Chan prevaricated in answering questions and gave evidence that I consider generally unbelievable. 24 Mr Knobel, called by Axiom, gave evidence with care and precision. He was very nervous, but truthful and, to the extent that he could recall, reliable. 25 Mr Chan gave evidence that he erected a noticeboard on the wall of the Property and placed a copy of the application on that noticeboard. This, he says, was done on the Tuesday, and he accepted that the noticeboard was not there by the Friday. The absence of the noticeboard shortly after the day upon which, he says, he erected it, was not a matter to which he referred in his affidavit. Mr Chan's evidence was that the noticeboard was erected by drilling holes into the wall. If that were to have been done, the wall would have been damaged and would have needed repair, or would still be in disrepair. There is no evidence to support the proposition that the wall has been repaired or that it is still damaged. 26 Axiom sought to support Mr Chan's evidence relating to the noticeboard by tendering a photograph of the alleged noticeboard. The photograph was poor quality and was a copy of the original. Mr Chan testified that the photograph had been taken with his mobile phone, the battery for which expired in 2007/2008, requiring Mr Chan to dispose of the phone. Apparently, according to Mr Chan, this photograph was printed from his mobile phone, coincidentally, before he disposed of it. This evidence was entirely fanciful. Moreover, if the photograph were taken for the purpose of proving that the noticeboard had been erected, it failed totally. The photograph was of the noticeboard alone, with no surrounding wall, so that it did not disclose that the notice board had been erected on the Property, or at all. I consider that Mr Chan gave evidence that he considered suited the case presented by Axiom and I do not accept his evidence, unless otherwise corroborated by independent acceptable evidence. I make clear that I also do not accept Mr Chan's evidence as to notice to lot owners of the original application and the excuse he gave for not serving the full application on each of them. 27 The effect of Mr Chan's actions was that he made the application in a personal capacity, received notice of the application as secretary of the Owners Corporation and kept from other lot owners the fact of the application and/or its contents. Terms of the Tribunal's Orders 28 It is necessary to summarise the relevant parts of the orders made by the Tribunal, following the second and third Tribunal decision. Each was an interim order. 29 The interim order of 14 May 2009 was in the following terms: "Pursuant to s 162(1)(a) and s 162(2)(a) the current strata managing agent, Axiom Property Consulting Pty Limited be appointed as strata managing agent to Owners Corporation SP 75633 from 24 May 2009 until such time as the substantive Application for an Order by an Adjudicator (SCS 09/12586) is determined." 30 The order of 15 June 2009 was in the following terms: "1. On 12 June 2009, pursuant to s 164(1)(c) of the Strata Schemes Management Act 1996, the Adjudicator refers to the Tribunal, application SCS 09/12586, for hearing. 2. I order that the transfer of the application to the Tribunal be expedited by the Registrar. 3. The interim order made on 14 May 2009 in application SCS 09/22490 appointing Axiom Property Consulting Group Pty Limited as compulsory strata manager until such time as the substantive proceedings have been determined is extended until further order by the Tribunal." Legislative Provisions 31 The construction of any statute requires a reading of the statute as a whole and, in the present proceedings, an understanding of the relationship between the Strata Schemes Management Act 1996 and the Consumer, Trader and Tenancy Tribunal Act 2001 ("the CTTT Act"). The more relevant provisions of the two statutes should be set out. They are: Strata Schemes Management Act 1996 "[124] Applications for order to be made to Registrar An application for an order under this Chapter must be made to the Registrar and must: (a) be in writing stating the grounds on which it is based, and (b) specify the order sought, and (c) be accompanied by the prescribed fee." "[125] Registrar to be satisfied that mediation has been attempted before accepting application (1) The Registrar must not accept an application for an order under this Chapter unless: (a) mediation under Part 2 or otherwise has been attempted but was unsuccessful, or (b) the Registrar considers that mediation is unnecessary or inappropriate in the circumstances, or (c) the application is for any of the following: (i) an order under section 162 for the appointment of a strata managing agent, (ii) an interim order under section 170 or stay of the operation of an order under section 180, (iii) a variation or revocation of an order under section 171 (2), 190 or 191, (iv) an order under section 182 (authorising certain acts during initial period), (v) an order for allocation of unit entitlements under section 183, (vi) an order under Part 6. (2) (Repealed) (3) If a matter is appropriate for mediation and mediation has not been attempted, the Registrar must inform the applicant that the applicant should arrange for mediation of the matter. (4) The applicant may apply to the Director-General for mediation of the matter in accordance with Part 2 or may make other arrangements for the mediation of the matter. (5) If the Registrar accepts an application for an order, the Registrar must deal with the application under Part 3." "[135] Notice of application to be given (1) The Registrar must give a copy of an application for an order under this Chapter to the owners corporation for the strata scheme to which the application relates and to any other person, not being the applicant, who, in the Registrar's opinion, would be affected if the order sought were made. (2) The copy of the application must be accompanied by a notice stating that the person to whom the notice is given may make a written submission to the Registrar within a time specified in the notice, or within a longer time specified in any further notice given by the Registrar. (3) The Registrar must give a notice to the applicant for the order stating that the applicant may make further written submissions to the Registrar within a time specified in the notice, or within a longer time specified in any further notice given by the Registrar. (4) The Registrar may extend the time for the making of submissions by a further notice given to each of the persons to whom the original notice was given. (5) Subsections (2)–(4) do not apply to an application for an order under Part 6 (Enforcement of orders of Adjudicators and Tribunal and certain notices)." "[136] Owners corporation to display and give certain notices (1) An owners corporation given a copy of an application for an order under this Chapter accompanied by the relevant notice must: (a) immediately cause the application and notice or a copy of the application and notice to be prominently displayed on any notice board required to be maintained by or under the by-laws on some part of the common property, and (b) keep the application and notice so displayed until the expiration of the time specified in the notice for the making of submissions, and (c) immediately serve a copy of the application and notice on each person whose name appears on its strata roll. (2) This section does not apply to an application for an order under Part 6 (Enforcement of orders of Adjudicators and Tribunal and certain notices)." "[138] General power of Adjudicator to make orders to settle disputes or rectify complaints (1) An Adjudicator may make an order to settle a dispute or complaint about: (a) an exercise of, or a failure to exercise, a function conferred or imposed by or under this Act or the by-laws in relation to a strata scheme, or (b) the operation, administration or management of a strata scheme under this Act." "[162] Order appointing strata managing agent to exercise certain functions (1) Order appointing strata managing agent to exercise functions of owners corporation An Adjudicator may by order appoint a person as a strata managing agent: (a) to exercise all the functions of an owners corporation, or (b) to exercise specified functions of an owners corporation, or (c) to exercise all the functions other than specified functions of an owners corporation. (2) Order may confer other functions on strata managing agent An Adjudicator may also order, when appointing a strata managing agent under this section, that the strata managing agent is to have and may exercise: (a) all the functions of the chairperson, secretary, treasurer or executive committee of the owners corporation, or (b) specified functions of the chairperson, secretary, treasurer or executive committee of the owners corporation, or (c) all the functions of the chairperson, secretary, treasurer or executive committee of the owners corporation other than specified functions. (3) Order may be made without application in certain circumstances An Adjudicator may make an order under this section, without an application having been made for the order, but only if satisfied that the management structure of a strata scheme the subject of an application under this Chapter is not functioning or is not functioning satisfactorily. (3A) Order may be made on application in certain circumstances An Adjudicator may make an order under this section, on application, but only if satisfied that: (a) the management structure of a strata scheme the subject of an application under this Chapter is not functioning or is not functioning satisfactorily, or (b) an owners corporation has failed to comply with a requirement imposed on the owners corporation by an order made under this Act, or (c) an owners corporation has failed to perform one or more of its duties, or (d) an owners corporation owes a judgment debt. (4) Qualifications of person appointed A person appointed as a strata managing agent under this section must: (a) hold a strata managing agent's licence issued under the Property, Stock and Business Agents Act 2002 , and (b) have given consent in writing to the appointment, which consent, in the case of a strata managing agent that is a corporation, may be given by the chief executive officer of the corporation. (c) (Repealed) (5) Terms and conditions of appointment A strata managing agent may be appointed under this section on such terms and conditions (including terms and conditions relating to remuneration by the owners corporation and the duration of appointment) as may be specified in the order making the appointment. (6) Revocation of certain appointments An order made in the circumstances referred to in subsection (3) may be revoked or varied by an Adjudicator on the application of a person entitled to make an application for an order under this section and, unless sooner revoked, ceases to have effect at the expiration of such period after its making (not exceeding 12 months) as is specified in the order. (7) Who may make an application? An application for an order under this section may be made only by: (a) a person who obtained an order under this Act that imposed a duty on the owners corporation or on its executive committee, chairperson, secretary or treasurer and that has not been complied with, or (b) a person having an estate or interest in a lot in the strata scheme concerned or, in the case of a leasehold strata scheme, in a lease of a lot in the scheme, or (c) the authority having the benefit of a positive covenant that imposes a duty on the owners corporation, or (d) a judgment creditor to whom the owners corporation owes a judgment debt." "[162A] Applications for orders generally If a provision of this Act, other than a provision of this Chapter, enables a person to make an application for an order of an Adjudicator, the application for the order must: (a) be made to the Registrar, and (b) be in writing, stating the grounds on which it is based, and (c) specify the order sought, and (d) be accompanied by the prescribed fee." "[163] Dismissal of application on certain grounds … (4) Without limiting the generality of subsection (3), an Adjudicator may, by order, dismiss an application for an order under this Part if: (a) the Adjudicator believes that the application is frivolous, vexatious, misconceived or lacking in substance, or (b) the Adjudicator believes that a decision in favour of the applicant is not within the jurisdiction of the Adjudicator, or (c) the Adjudicator believes that the applicant has unreasonably delayed the provision of information required by the Adjudicator, or (d) in the case of an application made by an owner of a lot in the strata scheme concerned, the applicant has not paid all contributions levied and payable in relation to the lot under this Act." "[167] Investigations by Adjudicator (1) An Adjudicator may investigate an application for an order in any way the Adjudicator thinks fit and may refuse to proceed with an application until any further information required by the Adjudicator has been provided." "[168] Order may not be made until submission time has expired An Adjudicator must not make an order under this Part (other than an interim order) until after the expiration of the time, or extended time, for making written submissions on the application." "[170] Interim orders (1) If an applicant for an order under another provision of this Chapter requests the making of an interim order and an Adjudicator is satisfied on reasonable grounds that urgent considerations justify the making of the order, the Adjudicator may: (a) make any order that could otherwise be made by the Adjudicator or the Tribunal, and (b) renew the order by serving notice in accordance with section 174 that the order is renewed if a request for its renewal is made not later than 3 months after the order was made. (2) An Adjudicator may revoke an interim order, or a renewal of an order, made under subsection (1). (3) An Adjudicator must serve notice in accordance with section 174 that the order has been revoked. (4) A person must not in, or in connection with, a request for an interim order or for the renewal of an interim order make a statement that the person knows is false or misleading in a material respect. Maximum penalty: 5 penalty units. (5) An interim order may be made or renewed even if: (a) an Adjudicator proposes to refer the application to the Tribunal, or (b) since receipt of the application, any procedure under this Act has not been followed or a function of an Adjudicator has not been exercised in relation to the application, or (c) the time, or extended time, for making written submissions on the application has not expired, or (d) a right of appearance or representation has not been exercised. (6) An interim order continues in force until: (a) the expiration of the period of 3 months that commenced with the making of the order, or (b) if application is duly made for its renewal—until the renewal is granted or refused, or (c) if it is renewed—the expiration of the period of 6 months that commenced with the making of the order. (7) Subsection (6) does not apply if the order is revoked by the Adjudicator or, on appeal, by the Tribunal or the application is determined in accordance with another provision of this Chapter." "[171] Variation or revocation of order by Adjudicator (1) Unless specifically provided by this Act, an order made by an Adjudicator is not capable of being varied or revoked by the Adjudicator but this subsection does not prevent a subsequent order being made by the Adjudicator under this Part on a fresh application. (2) This section does not operate to prevent an Adjudicator from varying an order, whether or not on application, for the purpose of correcting or clarifying it or extending a time and the order as so varied is taken to be the order instead of the original order. (3) An application under this section may be made by any of the following persons: (a) the owners corporation, (b) the lessor of a leasehold strata scheme, (c) the applicant for the original order, (d) any person who made a written submission on the application for the original order, (e) any other person who is required by the original order to do or refrain from doing a specified act." "[222] Proceedings before Tribunal (1) The provisions of the Consumer, Trader and Tenancy Tribunal Act 2001 , and of the regulations made under that Act, apply in relation to proceedings before the Tribunal under this Act, subject to any modifications prescribed by the regulations. (2) For the purposes of subsection (1), the jurisdictional limits imposed on the Tribunal by section 85 (3) of the Residential Tenancies Act 1987 do not apply to proceedings before the Tribunal under this Act. (3) In this section, a reference to proceedings includes a reference to the whole of proceedings, from the time an application is made to the Tribunal until the application has been finally determined." Consumer, Trader and Tenancy Tribunal Act 2001 "[4] Definitions (1) In this Act: ... ' proceedings ' means proceedings in or before the Tribunal, and includes any alternative dispute resolution procedures under Part 5. … ' Tribunal ' means the Consumer, Trader and Tenancy Tribunal of New South Wales established by this Act." "[25] Notice of proceedings (1) If any proceedings are to be determined by a hearing, the Registrar must cause notice of the time and place that is fixed for the hearing to be given to each party in the proceedings. (2) If a party who has been notified under subsection (1) fails to attend at the time and place notified, the proceedings may be held in the absence of the party. (3) If a person who is a party in any proceedings: (a) is a protected person within the meaning of the NSW Trustee and Guardian Act 2009 , or (b) has a guardian, or (c) is both a protected person and a person who has a guardian, the Registrar must cause notice of the time and place that is fixed for the hearing to be given to the NSW Trustee and Guardian, any guardian of the person, and any other person the Registrar considers appropriate and any other person prescribed by the regulations for the purposes of this subsection." "[26] Parties to proceedings (joint liability) ... (4) If at any time the Tribunal is of the opinion that a person should be joined as a party in proceedings to which this section applies, the Tribunal may, by notice in writing given to the person or by oral direction during the proceedings, join the person as a party in the proceedings." "[28] Procedure of Tribunal generally (1) The Tribunal may, subject to this Act, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." "[30] Proceedings causing disadvantage (1) This section applies if the Tribunal is of the opinion that a party in any proceedings is conducting the proceedings in such a way that unreasonably disadvantages another party in the proceedings by any conduct (including by failing to comply with an order or direction of the Tribunal)." "[34] Circumstances in which hearing may be dispensed with (1) The Tribunal may, with the consent of the parties in any proceedings, determine the proceedings: (a) by considering the documents or other material lodged with or provided to the Tribunal, and (b) without any hearing, if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties." 32 Section 222 of the SSM Act applies the provisions of the CTTT Act to proceedings before the Tribunal under the first mentioned Act. The difficulty, in the present proceedings, is that an Adjudicator is not defined as a member of the Tribunal and the Tribunal is not defined to include Adjudicators. However s 222(3) of the SSM Act make specific reference to proceedings meaning, in that respect, the whole of proceedings. The functions of the Adjudicator occur after the Registrar deals initially with an application and before, in this instance, it is referred to the Tribunal, or dealt with by the Tribunal. Nevertheless, most applications before an Adjudicator would never be referred to the Tribunal. Procedural Fairness 33 Once the Registrar receives an application, the Registrar is required to give a copy of the application for an order to the Owners Corporation and any other person affected by any order sought. There are requirements as to accompanying notices relating to the time specified for making submissions that must be served at the time that the copy of the application is served: see s 125 of the SSM Act. Once an Owners Corporation is served with a copy of an application, the Owners Corporation is required to cause the application to be "prominently displayed on any noticeboard required to be maintained", to keep the application and notice displayed until the expiry of the time required for the making of submissions, and immediately to serve a copy of the application and notice on each lot owner: s 136 of the SSM Act. In relation to the first application, which gave rise to the first Tribunal decision, neither Axiom nor the Owners Corporation complied with the provisions. 34 The clear purpose of the provisions of s 135 and s 136 of the SSM Act is to ensure that lot owners (assuming their name appears on the strata roll) are given the opportunity to make submissions in relation to any application for an order in relation to their property. The lot owners at the Property, including Buzrio, were denied that opportunity. A person whose rights will be adversely affected, by the determination of a tribunal, is entitled to be informed of the application and given the opportunity to contest it, unless the statute conferring power on the Tribunal provides otherwise by express words of necessary intendment: Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598, per Mason CJ, Deane and McHugh JJ. Buzrio has been denied procedural fairness by the Tribunal in relation to the first Tribunal decision. Buzrio was not given notice of the application, nor was it provided with an opportunity to contest the application, or to prepare or to present their case or submissions in opposition to it. That is also the case in relation to the second Tribunal decision and the third Tribunal decision. In each case, Buzrio and others have been denied procedural fairness. 35 Axiom submits that the rules of procedural fairness should be adapted to the particular circumstances in which they apply. Such a submission is accepted. But the adaptation of the rules of procedural fairness, to facilitate a just, quick and cheap resolution of disputes that come before the Tribunal, does not include the total suspension of the rules of procedural fairness. 36 Further, Axiom and the Owners Corporation submit that a lot owner, given a copy of an application and notice, as required by the terms of s 136 of the SSM Act, do not have the right to make submissions to the Tribunal. It is said that the only persons who have a right to make submissions are those persons whom the Registrar invites directly under s 136, being a person, not the applicant, who, in the Registrar's opinion, would be affected if the order sought were made: see s 135(1) of the Act. The formation of the Registrar's opinion under s 135(1) does not preclude a lot owner making submissions in relation to the application. The harmonisation of the provisions of s 135 and s 136, if they were in conflict, which I doubt, is achieved by allowing persons to make submissions, which persons are required by the Act to be served with the notice and application. The Act requires the service on lot owners, not only of the application, but the notice informing them of the time in which they may make submissions. The Act requires the Registrar to inform those that the Registrar considers have an interest, other than lot owners, and requires the Owners Corporation to serve the lot owners. Interim Orders 37 A careful reading of the provisions of s 170 of the SSM Act shows that an applicant for an order (in this case for the substantive application) may request the making of an interim order. An Adjudicator may make such an order if the Adjudicator is satisfied that urgent considerations justify the order. An Adjudicator may revoke or renew such an order. 38 The provisions of s 170(6) of the SSM Act prescribe the duration of any interim order issued under subsection (1) and any renewal thereof. The Act prescribes that the initial order expires at the end of three months from its making and may be renewed for a period that would, at the latest, expire at the end of the period of six months from the making of the original interim order. The duration of the order is prescribed by the Act and not by the order itself. 39 Section 171(1) of the SSM Act prevents the variation or revocation of an order issued by an Adjudicator, unless expressly authorised by another provision of the Act. Subsection (2) of that provision exempts from that prohibition a variation of an order for the purpose of a correction or clarification of an order or for the purpose of an extension of time. However, the extension of time that is there referred to is an extension of time in an order and the extension of time is effected by varying the order. Axiom and the Owners Corporation submit that the Adjudicator had power to extend the time in the original interim order by the order made on 15 June 2009. 40 There are two answers to that submission. Firstly, the Tribunal had no power to include in the second Tribunal decision a provision that the interim order would extend until the conclusion of the substantive proceedings. On its face, the second Tribunal decision is beyond power. Secondly, the duration of the first order, if it were validly made, is prescribed by the Act and would not be caught by the exception in s 171(2) of the Act. 41 Axiom submits that the third Tribunal decision is not a renewal, but an extension of time. Even if that were correct, and I do not accept it, it would not overcome the problems associated with the interrelationship of s 170 and s 171 of the Act. Further, Axiom submits that the request for an interim order to which s 170(1) of the Act refers is not an "application" and is therefore not covered by the provisions of s 135 and s 136 of the Act. Axiom submits that the Act draws a clear distinction between an application and a request. Such a submission does not withstand scrutiny, given the terms of s 125(1)(c) of the Act, which refers to such a request as an application. 42 Each of the interim orders is, on its face, beyond the jurisdiction of the Tribunal and void. Discretion 43 Axiom and the Owners Corporation submit that the Court, as a matter of discretion, ought not to make the orders sought by Buzrio. A number of issues were raised in relation to the exercise of that discretion. 44 First, in relation to the first Tribunal decision, the major basis upon which Axiom and the Owners Corporation submit that the discretion should be exercised against making orders is the delay in the taking of any action in relation to the orders. I accept that the catalyst for commencing the proceedings aimed at avoiding the appointment of Axiom was the fixing of one or more of the special levies. Frankly, that is not an unusual catalyst. Nevertheless, the submission as to delay has some strength. For very different reasons, however, it is unnecessary to determine that issue. 45 The first Tribunal decision has now lapsed. The only operative order is one or other of the interim orders (assuming one of them is valid). As a consequence any determination or order, the effect of which was to quash the first Tribunal decision would have no effect on the current circumstances and would only have the effect of invalidating decisions already taken and implemented. I am not inclined to make such an order. 46 As to the challenge to the interim orders, there has been no, or no substantial, delay. There is no reason why these orders should not be quashed. The limitations imposed by legislation on courts and tribunals, other than a superior court of record, have the effect that an order made beyond power is invalid and ineffective. The proper course is to ensure compliance with the relevant legislative scheme. The application is now before the Tribunal (as distinct from an Adjudicator) and it is for the Tribunal to determine what, if any, interim orders should be made, assuming, without deciding, that the Tribunal has power to make interim orders. Conclusion 47 I have determined that the first Tribunal decision was made in circumstances that amounted to a denial of procedural fairness. I have determined, as a matter of discretion, given that the orders made by the Adjudicator no longer have effect, not to quash that original order. However, I will issue a declaration as to the denial of procedural fairness. 48 As to the interim orders, on their face, they are beyond power. The Adjudicator has purported to make an order that, in its terms, subsists for longer than the time limit prescribed by the Act. Further, the making of an interim order in urgent circumstances does not relieve the Tribunal of the rules of natural justice. The circumstances may be so urgent that ex parte orders are appropriate, but it would be incumbent, in those circumstances, for the Tribunal to give interested parties an opportunity, within a reasonable period, to address the Tribunal on the continuation of such an order. The last matter is not one which it is necessary to decide finally. No other matter would warrant the Court refusing appropriate orders. 49 The Court makes the following declarations and orders: (1) The plaintiff was denied procedural fairness in the making of the order by the Consumer, Trader & Tenancy Tribunal on 23 May 2007 and 8 June 2007 in SCS 07/17221; (2) The interim orders of the Consumer, Trader & Tenancy Tribunal of 14 May 2009 in SCS 09/22490 be removed into this Court and quashed; (3) The interim order of 15 June 2009 made by the Consumer, Trader & Tenancy Tribunal in SCS 09/22490, insofar as it purports to extend the appointment of a strata manager, be removed into this Court and quashed; (4) The proceedings in SCS 09/22490 otherwise be remitted to the Consumer, Trader & Tenancy Tribunal to be dealt with in accordance with law; (5) The parties have liberty to apply for a costs order, or special costs order, within 14 days of the date hereof. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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