Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Huang v The Owners Corporation SP 54659 [2017] NSWCATAP 179 Hearing dates: 15 August 2017 Date of orders: 15 August 2017 Decision date: 15 August 2017 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President Decision: (1) The Appellants application to set aside the consent order made on 27 June 2017 is refused on an interim basis pending further order; (2) The parties have leave to make submissions on costs of this application when this appeal is finally disposed of; (3) This appeal is otherwise adjourned without directions, pending the outcome of the hearing before the Consumer and Commercial Division in SC17/28144; and (4) The Registry is directed to relist this appeal for callover or directions when SC17/28144 is decided or earlier if one of the parties so applies Catchwords: Setting aside consent order – interlocutory application Legislation Cited: Strata Schemes Management Act 2015 Category: Consequential orders (other than Costs) Parties: Shuo Huang (Appellant) Yuanjun Gui (Appellant) The Owners Corporation SP 54659 (Respondent) Representation: Solicitors: Bannerman's Lawyers (Appellants) Sachs Gerace Broome (Respondent) File Number(s): AP 17/32335 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 27 June 2017 Before: P Boyce, Senior Member File Number(s): SC 17/28144 reasons for decision Introduction 1. In this appeal, I gave oral reasons at the hearing on 15 August 2017. Subsequent to the hearing, an application was made for a written statement of reasons. That is set out in the following paragraphs (commencing at par 2). At the hearing, I made it clear that today's application to set aside the consent order was considered by me to be an interlocutory application because it was not possible to decide the appellant's application on a final basis without affording the parties an opportunity to make detailed submissions. If the appellant's application were successful (with the consequence that the consent order was set aside), that would have the practical effect of putting the parties in the position they were in at 27 June 2017, immediately prior to the making of the consent order. On the other hand, if the application to set aside the consent order was refused, it would be for the Member who hears the application on 28 August 2017 to decide whether the proposed work should be the subject of a final restraining order. Decision 1. This matter concerns a dispute between a lot owner and an Owners Corporation. The Owners Corporation is the applicant in proceedings before the Consumer and Commercial Division of the Tribunal. Essentially that application involves the concern of the Owners Corporation to proposed work which the lot owners who were the respondents were proposing to undertake. 2. What happened was that the proceedings came before the Tribunal on the 27 June 2017 when directions were made for the application to be prepared for hearing and subsequently the Tribunal gave a hearing date which is on 28 August 2017, that is to say, a matter of two weeks away. The Tribunal also made a consent order which was expressed in these terms: By consent, the owners, Ms Shuo (Sylvia) HUANG and Mr Yuanjun (Tedd) GUI must not install floating floor boards in Lot 5 Strata Plan 54659 until further order of the Tribunal. 1. The application today is an application brought by the lot owners that the consent order above be set aside. That is an application that has been lodged in connection with an appeal lodged by the lot owners and a Notice of Appeal has been filed but at this stage, no further activity has occurred on that appeal. It has not been the subject of any directions other than in connection with this application today and it has not been given a hearing date for the hearing of the appeal. However, I have been asked to consider as a Member constituting the Appeal Panel the lot owners' application to set aside that consent order. 2. Additionally, the Owners Corporation has made an application that the lot owners be restrained from carrying out the proposed work pending further order. Now that application is only necessary if I were to accede to the first application. It is a contingent application therefore arising only if the lot owners' application to set aside succeeds. In that application, I would be sitting as a Member of the Consumer and Commercial Division rather than as an Appeal Panel Member because the Owners Corporation made such an application in the Consumer and Commercial Division proceedings and it has never been heard because of the fact that the consent order made that unnecessary. 3. Today's application brought by the lot owners relies upon some evidence. There is the evidence of one lot owner which I have marked Exhibit A and the evidence of the person who proposes to undertake the work which is an affidavit I have marked Exhibit B. 4. The relevant parts of the affidavit of the lot owner are the following: 1. Paragraph 10 which sets out the proposal which is to install floating timber floorboards due to unbearable medical conditions that the deponent is experiencing; 2. Paragraph 11 where it is said that the Senior Member who made the consent order said words to the effect at that hearing: "do you understand that you have to get the Owners Corporation's permission to do that" to which the lot owner said "yes I understand that but on the other side I also understand that the Owners Corporation cannot withhold approval without a reason"; 3. Paragraph 13 where the lot owner explained the medical conditions which she was dealing with. I should also add that I was shown a medical certificate attached to the Notice of Appeal which supports the condition which the lot owner is experiencing; and 4. Paragraph 14 in which it said that the Senior Member made some statements to the effect that the work could not be undertaken without the consent of the Owners Corporation or a decision of the Tribunal. 1. The second affidavit is of Li Zhang marked Exhibit B and it concerns the nature of the proposed work. Essentially, that gentleman explains that the work involves laying acoustic underlay on the slab. So in layman's terms, the proposition is that there would be an underlay put on the slab. It would be a laminate floor on the underlay and the common property will not be affected other than by it being touched by or coming into contact with the underlay. 2. I note what I think is an inconsistency between that evidence and another statement which I was provided with and which was attached to the lot owner's affidavit. That is a statement from I Home Group Pty Ltd which talks about removing and disposing of internal carpet and carpet underlay and cleaning the concrete slab but in other respects it is largely the same in its description. 3. The Owners Corporation's case is essentially contained in the affidavit of the solicitor Anne Fernando and I have marked her affidavit Exhibit 1. That affidavit adds to the discussions which took place between the lot owners and Senior Member Boyce when the consent order was made. That affidavit makes it clear that the other co-owner was present, Mr Gui. 4. The lot owner's case is that the proposed work may be described as unregulated, in that it does not involve the necessity for consent of the Owners Corporation or other lot owners via a special resolution, and that it is work that the legislation envisages may be done unilaterally by a lot owner because it does not have any consequence of affecting the common property. 5. On the other hand, the Owners Corporation argue that s 110 of the Strata Schemes Management Act 2015 applies, which means that the Owners Corporation's consent is required and there is also a reliance upon reg 28 which is a regulation envisaged under s 110. The Owners Corporation say that if that section does not apply (s 110) then it would follow that s 111 applies. The Owners Corporation disputes the notion that the work is unregulated and may be undertaken without any consent. 6. The basis for setting aside the consent order as proposed by the lot owner lies in the alleged misrepresentation by the Member of the requirement for Owners Corporation's consent. In my view, it is not clear to me that there was a misrepresentation. The difficulty is in interpreting which of these two contrary positions is correct: the Owners Corporation which says that consent is required and the lot owner's position is that no consent is required. I do not regard the issue as being clear cut. I think it is a somewhat complicated issue that requires some consideration and I am reluctant to see such an important issue resolved one way or the other, in the context of these interlocutory proceedings. 7. My first point is that I am not convinced that there has been a misrepresentation. There may have been, but I do not think that the position is clear cut because it does require one to take a view about whether consent is required. 8. The second basis upon which I have looked at this application is to ask myself, assuming there was a misrepresentation by the Senior Member and that in fact no consent is required, was there in other respects sufficient evidence to lead me to conclude that the consent order should be set aside, or that the two co-owners were entirely reliant upon what the Senior Member said such that his misrepresentation (assuming that that was what it was) was sufficient to justify setting aside the consent order. In my view, the evidence in that respect is insufficient for a couple of reasons. 9. The first reason is that there is no evidence from the other co-owner Mr Gui. I do not know whether he too was influenced by what the Senior Member said. 10. Secondly, the affidavit of Ms Huang seems to reveal that she did have an existing understanding that consent was required. That is contained in paragraph 12 of her affidavit. So in once sense what the Senior Member said, assuming that it was a misrepresentation, did not lead her to a conclusion that she had no choice to consent because she already had a view that the Owners Corporation did have to give consent, albeit on the qualified basis that they couldn't withhold consent without a good reason. 11. The next point is that I have taken the view that even if the consent order was obtained improperly and should be set aside, the question is will I set it aside in the circumstance. Some of those circumstances I have already identified, namely that the contentions as to whether consent is required or not required is complex and debatable. But most importantly, the hearing is very soon and to set it aside, in effect means I am making a decision in favour of the contentions put forward by Mr Bannerman when I am not convinced that those contentions are necessarily correct. 12. It would seem to me that the balance of convenience and the practical circumstances of this matter would be better served by a proper ventilated hearing, which is occurring on 28 August 2017, when the issues are heard by a Member but also that will be an occasion for the lot owners to renew the application to have the consent order set aside, not on the basis of misrepresentation by Senior Member Boyce, but by reason of some other factor which may arise at the hearing. That is not to say that such an application would be successful. All I am saying is that that is an avenue which is available at that time and, at that time, the Member hearing the matter might be in a stronger position than I to determine whether the work proposed is unregulated or whether consent is required. I note that the current order is not permanent; it is simply an order until further order. 13. A further consideration is the medical evidence. I have had regard to the medical evidence. What the lot owner, in effect, is saying is that she can no longer endure the effect of living in the lot in its current condition, but against that is the fact that this work as proposed has some history dating back to at least March this year when the lot owners submitted a request to the Owners Corporation to install the floating timber floors in their lot. Although I am not dismissive of the need for some resolution so as to assist the lot owner's medical condition, I still think that waiting until the 28 August 2017, having regard to how long they have waited so far, is not unreasonable. 14. So on balance having regard to what I think are the balancing factors and what justice requires in this case looking at all of those issues that I have mentioned, it is my view that the consent order should remain in place until the hearing of the application before the Consumer and Commercial Division on 28 August 2017. 15. So the orders that I propose to make are to the following effect: 1. Application to set aside refused; 2. Parties have leave to make submissions regarding costs in the context of disposing of the appeal; and 3. The appeal is adjourned pending the outcome of the hearing on 28 August 2017. Orders 1. The Appeal Panel makes the following orders: 1. The Appellants application to set aside the consent order made on 27 June 2017 is refused on an interim basis pending further order; 2. The parties have leave to make submissions on costs of this application when this appeal is finally disposed of; 3. This appeal is otherwise adjourned without directions, pending the outcome of the hearing before the Consumer and Commercial Division in SC17/28144; and 4. The Registry is directed to relist this appeal for callover or directions when SC17/28144 is decided or earlier if one of the parties so applies. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar ********** 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: 25 August 2017