Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Walsh v The Owners – Strata Plan No 10349 [2017] NSWCATAP 230 Hearing dates: 01 November 2017 Date of orders: 18 December 2017 Decision date: 18 December 2017 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President T Simon, Senior Member Decision: (1) The appeal is dismissed. (2) The appellant's application for costs is refused. (3) The respondent's application for costs is refused. Catchwords: Strata schemes - where appellant applied for orders under section 232 of the Strata Schemes Management Act 2015 (NSW) – where Tribunal found it had no jurisdiction to make the orders sought – whether Tribunal made an error of law – whether leave should be granted for appellant to appeal on grounds other than a question of law Legislation Cited: Strata Schemes Management Act 2015 (NSW), ss 3, 4, 9, 57, 74, 79, 106, 108, 126, 226, 232, 240, 241, 245 and Pt 6 Strata Schemes Management Act 1996 (NSW) (repealed), s 138 Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 38, 60, 80 and 81 Strata Schemes Development Act 2015 (NSW), s 4 Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bugeja v Hatgiantounio [2002] NSWCA 132 Collins v Urban [2014] NSWCATAP 17 Crawley v Cochrane (Supreme Court (NSW), 14 October 1998, Cohen J, unrep) Franks v Consumer Trader and Tenancy Tribunal [2013] NSWSC 341 The Owners – Strata Plan No 37762 v Pham [2006] NSWSC 1287 Texts Cited: Mick Woodley ed, Osborn's Concise Law Dictionary, (11th ed 2009, Sweet & Maxwell) Category: Principal judgment Parties: Piroska Walsh (Appellant) The Owners - Strata Plan No 10349 (Respondent) Representation: F Lengyel (agent for Appellant) J S Mueller & Co Lawyers (Respondent) File Number(s): AP 17/29898 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 8 June 2017 Before: S Thode, Senior Member File Number(s): SC 17/11273 REASON FOR DECISION Overview 1. Ms Walsh is the owner of a unit in Double Bay, a suburb of Sydney. She has appealed to the Appeal Panel from a decision of the Tribunal dismissing her application. The background to her application is that the owners corporation replaced the garage door belonging to another unit owner, Ms Barton. Ms Walsh criticised the owners corporation for not investigating whether the garage door could be repaired before replacing it. She applied to the Tribunal for various orders to resolve her complaint. 2. Before the Tribunal can make an order to settle a complaint, an applicant must prove that the complaint is about one of the matters listed in s 232(1) of the Strata Schemes Management Act 2015 (NSW) (SSM Act). Ms Walsh submitted that her complaint was about either "the operation, administration or management of a strata scheme" or the exercise of a function under the SSM Act or the by-laws of a strata scheme. 3. The Tribunal did not address that issue in any detail but decided that it had no power to make any of the orders Ms Walsh sought. We agree with that conclusion. 4. We begin these reasons by outlining the relevant provisions of the SSM Act including s 232. We go on to describe the Tribunal's reasoning and decision, identify the grounds of appeal and address each ground. Relevant parts of the legislative scheme Power to settle a complaint or dispute 1. An object of the SSM Act is "to provide for the resolution of disputes arising from strata schemes": SSM Act, s 3(b). Section 232(1) and (2) give the Tribunal a broad power to make an order to "settle a complaint or dispute" about certain matters: 232 Orders to settle disputes or rectify complaints (1) Orders relating to complaints and disputes The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following: (a) the operation, administration or management of a strata scheme under this Act, (b) an agreement authorised or required to be entered into under this Act, (c) an agreement appointing a strata managing agent or a building manager, (d) an agreement between the owners corporation and an owner, mortgagee or covenant chargee of a lot in a strata scheme that relates to the scheme or a matter arising under the scheme, (e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme, (f) an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act. (2) Failure to exercise a function For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if: (a) it decides not to exercise the function, or (b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application. 1. Section 226(1)(d) defines "interested person": (1) The following persons are "interested persons" for the purpose of making an application to the Tribunal under this Act: (a) the owners corporation, (b) an officer of the owners corporation, (c) a strata managing agent for the scheme, (d) an owner of a lot in the scheme, a person having an estate or interest in a lot or an occupier of a lot, (e) if the strata scheme is a leasehold strata scheme, the lessor of the scheme. History and meaning of s 232 1. Section 232 came into effect on 30 November 2016 with the enactment of the SSM Act. Prior to that date, s 138 of the Strata Schemes Management Act 1996 (NSW) (repealed) (the 1996 Act) gave adjudicators, rather than the Tribunal, power to make orders to settle a complaint or dispute about certain matters. The reason for the change was outlined in the Second Reading Speech delivered on 14 October 2015, by Mr Victor Dominello, Minister for Innovation and Better Regulation: An owner, the owners corporation or a resident can apply to have a dispute mediated. Currently, if this fails an application can be made to have the matter adjudicated; however, the outcome of adjudication can be appealed to the NSW Civil and Administrative Tribunal (NCAT). The bill removes the layer of adjudication and this jurisdiction is conferred on the tribunal. This change avoids the extra time and cost implications for participants and also ensures strata disputes are dealt with consistently with other divisions of NCAT. 1. To the extent that s 232 and its predecessor, s 138 of the 1996 Act, are the same, case law interpreting the earlier provision remains relevant. Ms Walsh's application to the Tribunal 1. In her application to the Tribunal Ms Walsh sought orders under s 232(1)(a) and (e) of the SSM Act. 2. In her affidavit of 18 April 2017, Ms Walsh gave evidence that: Notwithstanding that there was no evidence that the garage door needed to be replaced as opposite (sic) to its being repaired, the strata manager issued a work order for its replacement without investigating the alleged problem and without the approval of the Strata Committee or the Owners' Corporation. 1. Ms Walsh then set out a chronology of events. Relevant communications are summarised below: 1. Ms Barton sent an email on 5 November 2016 to the Strata Manager stating that the garage door "is creaking and may collapse any moment". Ms Barton added that, "I have had the door control people out and they are saying my door needs replacing. This would probably be the case for the other two doors as well as no maintenance has taken place for all the time I've lived in Henrietta Street. Is it the owner responsibility? Or the Owner Corporation?" 2. On 7 November 2016, the Strata Manager replied saying that there was nothing in the by-laws to indicate that the doors are not common property and asked Ms Barton if she wished to obtain quotes. 3. On 16 November 2016 Ms Barton acknowledged the Strata Manager's advice that any work would have to be ratified by an Extraordinary General meeting of the owners corporation. 4. On 7 December 2016 the Strata Manager sent Ms Barton and Ms Walsh two quotes for the replacement of the garage door and motor and advised that the third quote would be completed shortly. 5. On 12 January 2017 the Strata Manager wrote to the Strata Committee advising that "we have sent a repair work order accepting PT's quote (third attachment). We have reviewed all past emails and progress this work order under the authority provided to us per our management agreement and to help reduce your risk exposure outlined under section 106 of the Strata Schemes Management Act 2015." 1. The owners corporation relied on the following evidence that the garage door did need to be replaced: 1. the statutory declaration of Ms Barton dated 2 May 2017 at [13] – [15] and [17]; and 2. the quote of AA Allgate Automation (NSW) Pty Ltd dated 30 November 2016 at page 21 of the appellant's affidavit of 18 April 2017. 1. There was also evidence that the strata managing agent was authorised to engage a contractor to replace the garage door and pay the contractor's cost of doing so. 2. Ms Walsh applied for the Tribunal to make the following six orders to "settle" her "dispute": 1. an order that the owners corporation instruct and ensure the strata managing agent manage the strata scheme with due diligence and competence; 2. an order for the owners corporation, via its agent, to seek and obtain reimbursement from the owner of Lot 7 for the unauthorised work order issued by the agent to replace the garage door; 3. a declaration that the strata managing agent acted beyond his authority and negligently; 4. an order that the agent provide a copy of invoice from garage door provider PT doors; 5. an order for the owners corporation to demand details of the sum of $660 charged by the agent as schedule B fees and receive reimbursement; 6. a declaration that the garage door is lot property, not common property. 1. We understand that Ms Walsh no longer seeks orders (4) or (5) and we have not addressed those matters. 2. Ms Walsh's application was based on an alleged breach of s 108(2) and s 57 of the SSM Act. On appeal Ms Walsh added s 106(2) to the list of provisions she said the owners corporation had contravened. Tribunal's decision 1. The Tribunal set out the nature of Ms Walsh's complaint in the following terms: The applicant objects to the use of sinking fund monies to pay for the replacement cost of a garage door in the Strata scheme. The door was replaced following authority from the chairperson of the executive committee and by reason of the agents delegated authority in the Strata schemes management agreement. The replacement door cost approximately $2500. The applicant claims that there was no investigation of whether the door required replacement, and the agent did not have the requisite authority to replace the door without a resolution. 1. The Tribunal dismissed the application. In summary, the Tribunal noted that the power to make an order under s 232 is discretionary. In relation to proposed orders 1, 2 and 3 the Tribunal found that it did not have power to make those orders. 2. In relation to proposed order 1, the Tribunal held that it had no jurisdiction to make an order "that the owners corporation instruct and ensure" the agent comply with its statutory obligation. The reason the Tribunal gave for reaching that conclusion was that the order sought was in the nature of an order for specific performance and Ms Walsh had not pointed to any provision of the SSM Act which gives the Tribunal power to make such an order. 3. In relation to proposed order 2, the Tribunal held that it had no power to compel the owners corporation to demand money from a lot owner, unless a resolution has been passed to enforce debt recovery proceedings. 4. In relation to proposed order 3, the Tribunal held that because the order was in the nature of a declaration, the Tribunal had no power to make it. 5. In relation to proposed order 6, the Tribunal found that the garage door is part of the common property wall but made no order. Consideration of the grounds of appeal Scope of appeal 1. Ms Walsh has the right to appeal on a question of law but needs the Appeal Panel's permission to appeal on questions other than a question of law: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80. 2. In the Notice of Appeal Ms Walsh set out three orders that she was asking the Appeal Panel to make. She also sought an order for costs. The three orders Ms Walsh sought on appeal are similar to, but not identical with, the six orders Ms Walsh applied to the Tribunal to make at first instance. Ms Walsh cannot change her case on appeal. In determining whether to uphold the appeal we have addressed the orders Ms Walsh asked the Tribunal to make at first instance, apart from orders 4 and 5 which have been withdrawn. We deal first with order 6. Ms Walsh sought a declaration that the garage door is lot property, rather than common property. The Tribunal found that it was common property. The question of whether the garage door is common property is critical to Ms Walsh's other grounds of appeal. Tribunal's finding that garage door is common property 1. The Tribunal found that " … the (garage) doors form part of the common property wall". Ms Walsh submitted that this finding was incorrect and that the garage door and the remote control mechanism are all lot property not common property. 2. The terms "common property" and "lot" have the same meaning as in the Strata Schemes Development Act 2015 (NSW), s 4. Those terms are defined as follows: "common property" , in relation to a strata scheme or a proposed strata scheme, means any part of a parcel that is not comprised in a lot (including any common infrastructure that is not part of a lot). "lot" , in relation to a strata scheme, means one or more cubic spaces shown as a lot on a floor plan relating to the scheme, but does not include any common infrastructure, unless the common infrastructure is described on the plan, in the way prescribed by the regulations, as a part of the lot. 1. Strata plan 10349 was in evidence before the Tribunal. It showed three connected garages located in a separate building from the residence. Photographs showing the garage door were also tendered in evidence. Ms Walsh faintly argued that because the garage doors were indented behind brick pillars they were not part of common property. She also submitted that the remote control device was part of lot property. 2. The question whether the garage door is common property is a mixed question of fact and law. Ms Walsh did not submit that the Tribunal had misstated the law. Presumably her ground of appeal is that the Tribunal erred when applying the law to the facts. It is an error of law for the Tribunal to make a primary factual finding when there is no evidence to support that finding and the finding is "crucial to … (the) decision": Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151. Similarly, if the Tribunal makes a finding "in the face of the evidence" that will constitute an error of law: Bugeja v Hatgiantounio [2002] NSWCA 132 at [9]. 3. The Tribunal made its finding that the garage doors form part of the common property on the basis of a correct understanding of the law and on relevant and reliable evidence. There was no evidence or argument put as to why the garage doors were not part of the common property other than that the walls were indented. Based on the relevant definitions, everything inside the garage is lot property but the garage door and the remote control are common property. 4. The Tribunal has made no error of law in making that finding. Nor is this a matter in which the Appeal Panel should grant leave to appeal on grounds other than a question of law. The finding was based on evidence and was open to the Tribunal: Collins v Urban [2014] NSWCATAP 17 [84]. Were the orders sought "about" the matters listed in s 232(1)(a) or (e)? 1. There was disagreement between the parties as to whether the complaint or dispute was "about" either of the matters listed in s 232(1)(a) or (e). While this disagreement was not the main focus of the appeal, we note that the Tribunal did not address this issue in any detail. 2. In The Owners – Strata Plan No 37762 v Pham [2006] NSWSC 1287, Rothman J held at [62] that the equivalent of s 232(1)(a) and (e) are "words of limitation on the power of the Tribunal, confining the subject matter of the dispute or complaint about which the Tribunal may make orders". His Honour went on to state that the Tribunal does not have power "to make any order to settle any dispute or complaint". More particularly, at [62] Rothman held that the Tribunal "is not given a general supervisory function to oversee the Owner's Corporation": The Owners – Strata Plan No 37762 v Pham [2006] NSWSC 1287. 3. Rothman J held at [65], that "for the jurisdiction under (the equivalent of s 232(1)(e) of the SSM) to be enlivened one must point to a function conferred by the Act or under the by-laws for a strata scheme". The words "function" and "exercise" which appear in s 232(1)(e) are defined in s 4: "function" includes a power, authority or duty, and "exercise" a function includes perform a duty. 1. One such function is the duty of the owners corporation to maintain and repair common property: SSM Act, s 106. Ms Walsh did not rely on this provision before the Tribunal but applied to do so on appeal. Because it makes no difference to the outcome, we have considered the merits of an application under s 106: NCAT Act, s 81(2). 2. An owners corporation has the principal responsibility for the management of a strata scheme including responsibility for "maintaining and repairing the common property of the strata scheme": SSM, s 9. Part 6 of the SSM Act relates to property management and begins by imposing a duty on the owners corporation to maintain and repair common property: 106 Duty of owners corporation to maintain and repair property (1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation. (2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation. 1. Both parties accepted that a breach of s 106(1) of the SSM Act could be characterised as being "about" an exercise of, or failure to exercise, a function conferred or imposed by the SSM Act. While the duties under s 106 clearly fall within the definition of a function in s 232(1)(e), the fundamental difficulty with Ms Walsh did not allege, on appeal, that there had been a breach of any of the duties in that provision. Those duties are expressed positively as maintaining common property and keeping it in a good state of repair. There is no duty to consult with owners as to whether common property needs to be replaced or to investigate the need to repair or replace common property. Although this issue was not a ground of appeal, because it was not raised at first instance, the correct approach if the issue had been raised would have been for the Tribunal to find that, in the circumstances of this case, Ms Walsh's complaint was not "about" a breach of the duty in s 106. 2. The owners corporation did not accept Ms Walsh's submission that breaches of ss 108(2), 57 or s 74 (4)(a) together with 79(2) could be characterised as an exercise of, or failure to exercise, a function conferred or imposed by the SSM Act. 3. Section 108 (2) of the SSM was the basis for Ms Walsh's application for an order that the owners corporation instruct and ensure that the Strata managing agent manage the Strata scheme with due diligence and competence. That provision states that: 108 Changes to common property (1) Procedure for authorising changes to common property An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property. (2) Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed. 1. Ms Walsh submitted that the Tribunal ignored her arguments that s 108(2) had been breached. According to Ms Walsh, if the Tribunal had afforded her a "proper hearing" it would have found that the owners corporation had breached s 108(2). Ms Walsh clarified that she was submitting that no special resolution had been passed in accordance with the requirement in s 108(2). 2. This ground of appeal cannot succeed because s 108(2) relates to "changes" to common property. It requires a special resolution to be passed by the owners corporation that specifically authorises the taking of the particular action proposed. The Tribunal made a finding of fact that the garage door was common property. The Tribunal made no finding that the decision to replace the garage door was a decision to "change" the common property and it is clear on the undisputed facts that it was not a "change". The installation of a new garage door did not add to or alter the common property, nor did it involve the erection of a new structure on common property. Consequently, Ms Walsh's complaint was not "about" a breach of s 108(2). 3. Another provisions on which Ms Walsh relied as constituting the exercise or failure to exercise a function under the SSM Act was s 57: 57 Breaches by strata managing agent (1) If a strata managing agent has been delegated a function by an owners corporation and a breach of the duty by the owners corporation would constitute an offence under a provision of this Act, the agent is guilty of an offence under that provision (instead of the owners corporation) for any breach of the duty by the agent occurring while the delegation remains in force. 1. This provision has two pre-requisites. First, a strata managing agency must have been delegated a function by the owners corporation. Second, a breach of the duty by the owners corporation would constitute an offence under a provision of the SSM Act. If those two pre-requisites are established, the managing agent is guilty of an offence for any breach of the duty by the agent. The second pre-requisite does not apply in this case. A breach of s 106 of the SSM Act does not constitute an offence. In any case Ms Walsh has not alleged that the owners corporation had actually breached the duty imposed by s 106. In those circumstances the Tribunal was correct to find that s 57 is not applicable to the facts of this case. 2. Ms Walsh submitted that the Tribunal breached procedural fairness by not accepting her "Reply to the Respondent's Submissions" dated 3 May 2017. In that submission, Ms Walsh sought to rely on additional breaches by the owners corporation of s 47(4)(a) and s 79(2) of the SSM Act. Ms Walsh submits that by paying for a new garage door, the owners corporation was in breach of these provisions. 3. According to the owners corporation, Ms Walsh had the opportunity to make oral submissions based on all her submissions. (See Transcript 19.41-50.) She availed herself of that opportunity. (See Transcript T39.30 – T41.31.) The Tribunal fully engaged with Ms Walsh about how she wished to frame her case and gave her the opportunity to re-frame it. Ms Walsh took that opportunity (See Transcript T9.10, T9.43 and T10.11.) 4. We find that the Tribunal did not breach procedural fairness because, based on the transcript, she was given a reasonable opportunity to be heard or otherwise have her submissions considered in the proceedings: NCAT Act, s 38(5)(c). However, in case that conclusion is incorrect, we will address the merits of these submissions: NCAT Act, s 81(2). 5. Section 74(4)(a) provides that: 74 Capital works fund … (4) Amounts payable from fund An owners corporation may pay money from its capital works fund only for the following purposes: (a) payments of the kind for which estimates have been made under section 79 (2), 1. Section 79(2)(e) provides that: (2) An owners corporation must, at each annual general meeting, estimate how much money it will need to credit to its capital works fund for actual and expected expenditure: (a) for painting or repainting any part of the common property which is a building or other structure, and (b) to acquire personal property, and (c) to renew or replace personal property, and (d) to renew or replace fixtures and fittings that are part of the common property, and (e) to replace or repair the common property, and (f) to meet other expenses of a capital nature. 1. Ms Walsh has not identified how the owners corporation has exercised or failed to exercise a function under either of these provisions. The Tribunal should have found that the orders Ms Walsh sought under s 232(1)(e) were not orders to settle a dispute about "an exercise of, or failure to exercise, a function conferred or imposed by or under this Act …". 2. Ms Walsh also relied on s 232(1)(a) of the SSM Act. Rothman J held The Owners – Strata Plan No 37762 v Pham [2006] NSWSC 1287 at [73], "that the words 'operation, administration or management' must be construed ejusdem generis" because "they have overlapping meanings such that all of them may apply to one or more situations". At [74] His Honour held that: The purpose of the provisions in [the equivalent of s 232(1)(a)] is to ensure that those matters with which the Act deals and with which the Act requires the Corporation to deal, either directly or indirectly, may be the subject of resolution by the Tribunal. But the operation, administration or management must of 'of a strata scheme'. 1. In this case the complaint is about the management of a strata scheme. Consequently one of the pre-conditions to the making or an order under s 232 has been satisfied. It can be implied that the Tribunal reached the same view because it considered the further question of whether it was appropriate to make an order under s 232 of the SSM Act. Failure to make findings of fact 1. Ms Walsh submitted that the Tribunal failed to make findings of fact on critical issues contained in her affidavit. 2. In our view the Tribunal did not need to make findings as to whether the garage doors needed to be repaired or replaced because even if they were not faulty, Ms Walsh's complaint was not about any of the matters listed in s 232(1)(a) or (e). Order making power under s 232 Orders against entities who are not parties 1. Even if our conclusion is incorrect, and Ms Walsh's application was about one of the matters listed in s 232(1)(a) or (e), the Tribunal was correct to find that it had no power to make an order against any entity other than the owners corporation. 2. Ms Walsh submitted that the Tribunal has power to make orders in these proceedings that are directed to a person other than the owners corporation. It is not controversial that the owners corporation, the chairperson, secretary or Treasurer, the strata manager or an owner or occupier of a lot, may exercise functions under the Act. There is no reason to restrict the party against whom an order may be made under s 232 to the owners corporation: Crawley v Cochrane (Supreme Court (NSW), 14 October 1998, Cohen J, unrep) at 15. But, in the same decision, Cohen J made it clear at 16, that an order can only be made against a person who is the subject of an application for an order. To the extent that Ms Walsh sought an order against any entity other than the owners corporation, her appeal should be dismissed. 3. The second order sought by Ms Walsh at first instance was that Ms Barton reimburse the owners corporation for the cost of replacing the garage door. Ms Walsh submitted on appeal that she was not seeking an order for debt recovery but rather for restitution. She submitted that this is a simple case of mistake of law. The mistake by the owners corporation gives rise to a prima facie obligation on the part of Ms Barton to make restitution. 4. The owners corporation submitted that Ms Walsh has not identified any provision of the SSM Act, or any other legislation, that gives the Tribunal jurisdiction to make a money award based on restitution. Ms Walsh has not personally suffered any loss or damage and has not established that the owners corporation was unjustly enriched. According to the owners corporation, the subsequent ratification of the garage door expenditure at the Annual General Meeting on 18 July 2017, puts beyond doubt that there is no case for restitution. 5. The Tribunal made no error of law when it found that it should not exercise its discretion to order the owners corporation to institute proceedings against Ms Barton for restitution. Such an order would have to be premised on a finding by the Tribunal that the payment was made to Ms Barton by mistake. The Tribunal made no such finding and, in any case, we have found that Ms Walsh's application was not about one of the matters listed in s 232(1)(a) or (e) of the SSM Act. Order making power generally 1. The Tribunal is a body created by statute. It has no inherent power. Any power to make an order must come from the wording of the legislation: Crawley v Cochrane (Supreme Court (NSW), 14 October 1998, Cohen J, unrep) at 14. The kinds of orders the Tribunal may make under s 232 are not specified in that provision. Under s 240 of the SSM Act, "[T]he Tribunal may deal with an application for an order under a specified provision of this Act by making an order under a different provision of this Act if it considers it appropriate to do so". For example, if the Tribunal finds, in accordance with s 232(1)(e), that the owners corporation has breached any of the statutory duties imposed by s 106, the Tribunal may award damages to an owner for any reasonably foreseeable loss suffered by the owner as a result of the contravention: SSM Act, s 106(5). Part 6 ends by outlining the various kinds of orders the Tribunal may make about common property. Those orders include orders requiring the owners corporation to carry out work on common property: SSM Act, s 126. 2. Section 241 of the SSM Act empowers the Tribunal to make orders similar to mandatory and prohibitory injunctions: The Tribunal may order any person the subject of an application for an order to do or refrain from doing a specified act in relation to a strata scheme. 1. A declaration has been defined as "a decision of a court or judge on a question of law": Mick Woodley ed, Osborn's Concise Law Dictionary, (11th ed 2009, Sweet & Maxwell). The Tribunal held that there is no provision for such relief in the SSM Act. That is not strictly correct. If the Tribunal makes an order under s 232, it may also "declare" that the order is to have effect as a decision of the owners corporation: SSM s 245(1)(e). But the Tribunal was correct to conclude that, unlike the general power to give injunctive relief, the Tribunal does not have a general power to give declaratory relief. If a finding needs to be made or a Tribunal needs to 'declare' that it is satisfied of a particular matter, it expresses those views in the body of the decision, rather than in a separate order. For example, in a particular case the Tribunal may conclude that the owners corporation has breached the duty in s 106 to maintain and repair common property. That conclusion is expressed in the reasons for decision rather than as a separate order. If the Tribunal decides to make an order for damages as a consequence of that breach, that conclusion would be expressed as an order. 2. The Tribunal was correct when it found that it had no power to make an order that the owners corporation "instruct and ensure" the managing agent to comply with its statutory obligation. Appeal on questions other than questions of law 1. Ms Walsh applied to the Tribunal for leave to appeal on grounds other than a question of law: NCAT Act, s. 80(2)(b). In Collins v Urban [2014] NSWCATAP 17 [84] the Appeal Panel of the Tribunal set out the following general principles In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; Ordinarily it is appropriate to grant leave to appeal only in matters that involve: a. issues of principle; b. questions of public importance or matters of administration or policy which might have general application; or c. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; d. a factual error that was unreasonably arrived at and clearly mistaken; or e. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; 1. Ms Walsh submitted that there was no evidence that the garage door needing to be replaced and the owners corporation did not provide expert evidence as to any need for replacement. The onus is on Ms Walsh to prove her case on the balance of probabilities: Franks v Consumer Trader and Tenancy Tribunal [2013] NSWSC 341 at [29]. There is no onus on the owners corporation to disprove her case. There is no basis on which leave should be granted for Ms Walsh to appeal on grounds other than questions of law. Costs 1. Ms Walsh applied for costs on appeal. She was not represented by a lawyer so can only claim disbursements. The owners corporation also sought costs against Ms Walsh. 2. Under s 60 of the NCAT Act, the general rule is that parties pay their own costs. There must be "special circumstances" justifying an award of costs before the Appeal Panel will make a costs order. 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. 1. Ms Walsh relied on s 60(3)(c), that the owners corporation has put on a defence which has no tenable basis in fact or law. Ms Walsh also relies on s 60(3)(d) – the nature and complexity of the proceedings and s 60(3)(e) – that the defence is frivolous, vexatious and lacking in substance. Ms Walsh criticised the owners corporation for failing to provide any evidence to support their defence. 2. The owners corporation claims that Ms Walsh's appeal has no tenable basis in law or fact, that she continually changed her case both at first instance and on appeal and that, given the principles of proportionality, she should not have appealed about a relatively small amount of money: NCAT Act, s 36(4). 3. We agree with the owners corporation that Ms Walsh's appeal was very weak. If she continues to make such claims it may well be appropriate to make a costs order against her. But given the fact that Ms Walsh was not represented by a lawyer we have decided not to make a costs order on this occasion. Orders 1. The appeal is dismissed. 2. The appellant's application for costs is refused. 3. The respondent's application for costs is refused. ********** ​ 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: 18 December 2017