Liana Maree Taylor v John Merity, Michael Edwards, Pamela Cominos and The Owners-Strata Plan No 76899

Case •

[2014] NSWCATCD 195

•

24 October 2014

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Liana Maree Taylor v John Merity, Michael Edwards, Pamela Cominos and The Owners-Strata Plan No 76899 [2014] NSWCATCD 195
Hearing dates:23 September 2014 (Decision on the papers)
Decision date: 24 October 2014
Jurisdiction:Consumer and Commercial Division
Before: Geoffrey Meadows, Senior Member
Decision:

The appeal is dismissed

Catchwords: Appeal against Adjudicator’s order – appeal filed out of time – extension of time to file appeal
Legislation Cited: Civil and Administrative Tribunal Act 2013
Strata Schemes Management Act 1996
Category:Principal judgment
Parties: Appellant: Liana Maree Taylor;
First Respondent: John Merity;
Second Respondent: Michael Edwards;
Third Respondent: Pamela Cominos;
Fourth Respondent: The Owners -Strata Plan No 76899
Representation: The parties appeared in person
File Number(s):SCS 14/34439
Publication restriction:Nil

Judgment

  1. On 11 February 2014, the appellant filed an application for an Adjudicator’s order, being SCS 14/08210.

  2. That application was determined by Adjudicator J. Smith on 30 May 2014. Adjudicator Smith made an order that the respondent was to comply with its obligations under s 62 of the Strata Schemes Management Act 1996 (“the Act”) and the adjudication application was otherwise dismissed. According to the information on the Adjudication file, a copy of the order and the reasons for decision were posted to the relevant parties, including the appellant, on 2 June 2014. A copy of the order was posted to the appellant at her home address.

  3. Pursuant to s 177 of the Strata Schemes Management Act 1996 (“the Act”), the following provisions apply to an appeal against an Adjudicator’s order:

177   Appeal against order of Adjudicator

(1)   Each of the following persons may appeal against an order made by an Adjudicator under this Part:

(a)   the applicant for the order,

(b)   a person who made a written submission on the application for the order,

(c)   a person required by the order to do or refrain from doing a specified act,

(d)   in the case of a leasehold strata scheme, the lessor of the strata scheme.

Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013.

(2)   …

(3)   An appeal must be lodged:

(a)   in the case of an appeal against an order dismissing an application—not later than 21 days after the order takes effect, or

(b)   in the case of an appeal against any other order:

(i)   not later than 21 days after the order takes effect, or

(ii)   by leave of the Tribunal (given on sufficient cause being shown why the notice was not lodged within the time limited by paragraph (a))—not later than 90 days after the order takes effect.

(4) Section 41 of the Civil and Administrative Tribunal Act 2013 does not apply in relation to the periods referred to in subsection (3).

  1. On that basis, if the order was served on the appellant, the Owners Corporation and the other parties by 3 June 2014 (as submitted by the respondents) the appeal was required to be lodged no later than 24 June 2014.

  2. Pursuant to s 76 of the Interpretation Act 1987, service is deemed to have been effected 4 working days after the date of postage. On that basis, service is deemed to have been effected by 6 June 2014.

  3. In accordance with the usual procedures of the Tribunal, the appeal was listed for directions on 13 August 2014, before me. On that occasion, the respondents raised the issue that the appeal had been filed out of time. I made orders for the parties to provide written submissions in relation to that preliminary issue, which, by agreement of the parties, was to be decided on the papers.

RESPONDENTS’ FIRST SUBMISSIONS

  1. Submissions dated 27 August 2014 and signed by Mr Merity were filed on behalf of the respondents, including an affidavit dated 25 August 2014 sworn by Mr Merity and an affidavit sworn by Beth Marie Cocking (the strata manager of Strata Plan 76899) on 26 August 2014.

  2. The affidavit of Mr Merity gives evidence in relation to two issues: the date the Notice of Order dated 2 June 2014 (referred to in paragraph 3 above) was received by him, and details in relation to the payment of two amounts to the appellant by the respondent Owners Corporation on or about 25 July 2014. Mr Merity states that he received his copy of the Notice of Order on 3 June 2014 and that on 13 August 2014 he confirmed, by telephone, with a “registry officer” that the Notice of Order would have been posted on the date given in the order, 2 June 2014. In relation to the payments to the appellant, Mr Merity states that on 20 June 2014 the executive committee wrote to Mr Smits on behalf of the appellant advising, with detailed reasons why, that it had been agreed to pay the appellant the amount of $2,854.00 in payment for certain works.

  3. The written submissions signed by Mr Merity make two central submissions:

  1. “in respect of virtually the whole of the Appeal it is lodged out of time and the Tribunal lacks power to extend it; and

  2. …, in respect of 3 grounds of appeal where there may be power to extend time, that power requires the exercise of a discretion which should not be exercised in a case of this character.”

  1. Mr Merity refers to s 210 of the Act:

210   Time at which order takes effect

(1)   An order takes effect when a copy of the order is served:

(a)   if the order requires a person to do or refrain from doing a specified act, on that person, or

(b)   in any other case, on the owners corporation for the strata scheme to which the order relates.

(2)   This section does not apply if express provision is otherwise made by this Act or in the order itself.

Mr Merity also extracts s41 of the Civil and Administrative Tribunal Act 2013 (“the NCAT Act”) as follows:

41   Extensions of time

(1)   The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2)   Such an application may be made even though the relevant period of time has expired.

  1. The affidavit of Ms Cocking gives evidence, supported by documentary annexures, that the Notice of Order was received (and date stamped) on 3 June 2014 and was emailed to the executive committee the same day. Mr Merity submits that the other members of the executive committee, Mr Edwards and Ms Cominos, “believe” that the Notice of Order was received by them “in the week commencing 2 June 2014”. As a result, Mr Merity submits, the appeal was required to be filed within 21 days of 3 June 2014, that date being 24 June 2014. As the appeal was filed on 1 July 2014, it is out of time in regard to ss 177(3)(a) and 177(3)(b)(i) of the Act.

  2. The respondents’ submissions then refer to an appeal pursuant to s 177(3)(b)(ii) of the Act, by which an appeal may be lodged not later than 90 days after the order takes effect but only by leave of the Tribunal, sufficient cause being shown why the appeal was not lodged within the time limited by s 177(3)(a). The respondents say that the Act distinguishes, in s 177, between an order dismissing an application (where there is a strict 21 day period in which to file an appeal) and “any other order”, where the Act provides for the possible extension of time to 90 days on cause being shown.

  3. The respondents then submit that, according to the grounds of the appeal contained in the application for appeal, all the grounds of appeal except paragraphs 2, 29 and 30 relate to orders sought in the original application for an Adjudicator’s order which were dismissed by Adjudicator Smith “in their entirety by order 2 [of the adjudicator’s decision]”. It is submitted that except for grounds 2, 29 and 30, there is no power to extend time as those grounds relate to “any other order” and s41 of the NCAT Act is specifically excluded in relation to appeals pursuant to the Act.

  4. In relation to the three paragraphs of the grounds of appeal which the respondents concede relate to order 1 and for which, therefore, on cause being shown the Tribunal may extend the time for lodging an appeal to up to 90 days after to the Notice of Order took effect, the respondents submit that the only reason given for not lodging the appeal within 21 days is the assertion of Mr Smits that the Notice of Appeal was not received until 11 June 2014. The respondents submit that:

  1. Mr Smits is an experienced legal practitioner who should have a thorough knowledge of, inter alia, time periods for lodging appeals;

  2. even if the Notice of Order was not in fact received until 11 June 2014, the appellant still had a further two weeks within which to lodge her appeal;

  3. the 3 grounds of appeal relating to Order 1 are futile;

  4. if time is extended, this will result in considerable cost and inconvenience to the respondents; and

  5. public moneys should not be wasted by entertaining appeals of this character.

  1. Finally, the respondents submit that as Adjudicator Smith stated at paragraph 74 of his reasons, he expected the Owners Corporation to pay any sums saved in respect of the remedial works performed by her and not by the Owners Corporation’s contractors, this was done as submitted in paragraph 9 above.

APPELLANT’S SUBMISSIONS

  1. The appellant’s submissions were prepared by Mr Leo Smits. Paragraphs 1 to 28 inclusive of those submissions are under the heading “A Introduction and Other Facts” and in my opinion are not relevant to this preliminary decision, except as referred to below. The actual submissions in relation to the preliminary issue commence at paragraph 29 although some of those paragraphs are also not relevant in my opinion.

  2. Paragraph 29 submits that the Tribunal has the power to correct an obvious error in the decision (that is, under the “slip rule”) pursuant to s 63 of the NCAT Act. Mr Smits submits that the s 63 power includes the situation where the Tribunal “forms the view that errors have arisen from accidental slips or omissions or there are mistakes or inconsistencies between the order and material facts or laws or reasons for decision”.

  3. Paragraph 30 submits that the Tribunal should “set aside” the decision pursuant to s 53(4) of the NCAT Act “where it accepts or decides of its own review that there has been a failure of the Act (such as Section 174 if it has the effect of barring the Appeal under Subsection 177(4) of the Strata Act) or other procedural rules in relation to the conduct of the earlier proceedings”.

  4. Paragraphs 31 and 32 submit that pursuant to s 4(1) of the NCAT Act (the definitions section), the extension of time for any matter, including lodgement of an appeal, is an interlocutory matter. “As such”, submits Mr Smits, “there is no limitation bar to the determination of such a temporal issue by the Tribunal. It has jurisdiction to determine the interlocutory decision under Section 32 of the Tribunal Act”.

  5. Paragraph 33 submits that under s80 of the NCAT Act the Appeal Panel or the Tribunal at first instance may grant leave to appeal or deal with the matter as an internal appeal by way of a new hearing if the appellant has suffered a substantial miscarriage of justice.

  6. Paragraphs 34 and 35 refer to the “general rule” that an appeal must lodged within 28 days of the date upon which the appellant was notified of the decision and that this was clear on the face of the Order.

  7. Paragraph 36 notes that s 174(1)(b) requires the Principal Registrar as distinct from the Adjudicator must serve a copy of the order on the applicant for the order, and submits that the Principal Registrar did not comply with this provision.

  8. Paragraph 37 submits that the Owners Corporation failed to comply with s 174(2) in that the order was not displayed on a notice board nor was a copy sent to the applicant. The paragraph also submits that the section applies to an interlocutory order or interim order.

  9. Paragraphs 38 to 41 inclusive refer to the respondent’s submissions in relation to ss 210(1) and 177(3) and (4) of the Act. The respondents are said to rely upon those sections “to res judicata the Appeal and oust the jurisdiction of the Tribunal to grant any temporal extension of the Appeal period, if required”. Noting that the main submission of the appellant is that the appeal was filed within time, it is submitted that s 210(2) provides that s 210 does not apply if express provision is otherwise made by the Act. Mr Smits states that “[i]n that regard, it is submitted that service of an order is not deemed to take effect in the absence of compliance with the express requirements of Section 174 otherwise it might defeat the object or purpose of Sections 174, 177 and 210, as in this case”.

  10. Paragraphs 42 to 45 make submissions in relation to s 190 of the Act. It is requested that the Tribunal on its own motion amend the order to extend the time “to remove any doubts”, or alternatively on the application of the appellant pursuant to s 190(2)(c). The appellant then submits that in the exercise of any discretion “on that question” (which I infer is the application just mentioned), none of the grounds stated in s 185 were held to be applicable and that the Adjudicator should not have dismissed the proceedings in the circumstances, “including the fact that order 1 was not spent and should have included a time limit”.

  11. Next, paragraphs 46 to 52 inclusive make submissions in relation to the effect of s 41 of the NCAT Act. That section, it is submitted, permits the Tribunal to extend the time limit under the Act of its own motion or on application (and the appellant “hereby applies” for the necessary extension), and that the NCAT Act “is paramount to the Strata Act”. There is the further submission that the Tribunal is responsible for the control of its own internal practice and procedure, “including those of Adjudicators who operate from within the Tribunal”. It is further submitted that the submission just made is reinforced by s 190 of the Act and s 41 of the NCAT Act. Paragraph 52 submits that s 177(4) of the Act cannot be effective to “oust the jurisdiction of the Tribunal” in the face of ss 4(1), 41(1) and 80(2)(b) of the NCAT Act, and ss 174, 190 and 210(2) of the Act, “at least so far as it purports to create a res judicata based upon an Adjudicator’s Decision and/or to extinguish causes of action that arose outside the strict scope of the Strata Act, as in this case”.

  12. Paragraphs 53 to 55 inclusive refer to the submission of the respondents which, “is in effect that both Order 1 took effect and was spent from the moment it was served, so as to become redundant if merged in the Decision in the absence of new enforcement or curial proceedings. They submit that Order 2 took effect on 24 August 2014, regardless of when it was served upon the Applicant”. The appellant then submits that “[f]urther, they submit in effect that a sidewind effect of Section 210(1)(b) of the Strata Act is that an Applicant can be barred from a right of Appeal simply by service of an Order upon her Respondent (the Owners Corporation), despite its failure to notify the Applicant of the making of the Order under Section 174”. It is submitted that there was no compliance by the respondents with s 174. Alternatively, it is submitted that any omission to exclude the application of s210 can be cured by the Tribunal, or remitted to and rectified by the Adjudicator “under the Slip Rule”.

  13. Paragraphs 56 to 65 make a number of general submissions, including that the appellant was not dilatory in filing her appeal, that there was no lack of “due process” by the appellant in relation to the appeal, an explanation for any delay is provided in the affidavits of Mr Smits sworn on 9 September 2014, that the appellant seeks leave to amend the Notice of Appeal to seek an extension of time if required and that the respondents have failed to file a Reply within 14 days or since following service of the Notice of Appeal of 2 July [sic] 2014. Mr Smits then refers again to s 174 of the Act to the effect that notice of a decision must be given to the interested parties and that it would be an unjust and perverse law if a party was denied an opportunity to appeal because of non-receipt of notice of a decision. It is noted an overriding policy underpinning the NCAT Act and adjudications is the just, efficient and economic disposal of disputes. Finally, it is submitted that a substantial volume of the material lodged before the adjudicator concerned allegations of “seriously dishonest conduct of the Respondents (mostly attributable to Mr Merity – the author of their submissions) over an extensive period of nearly 8 years. The covert purpose of raising the limitation issue is to shut down a review of that conduct by the Tribunal”.

  14. The evidence of the appellant in relation to the preliminary issue is contained in an affidavit sworn by Leonardus Gerardus Smits on 9 September 2014 headed “Affidavit re Limitation Issue”, to which are attached 5 annexures.

  15. Mr Smits deposes that he is authorised to swear his affidavit on behalf of the appellant, that he has known the appellant for approximately 9 years and that he retired as a lawyer on 30 June 2003. Mr Smits deposes in paragraph 3 of this affidavit that he has lived intermittently with the appellant at unit 4 (in the scheme) since January 2014. He states that Mr Merity’s statement at paragraph 20 of his affidavit summarised above that the appellant and Mr Smits have “at all material times” resided in Unit 4 is false to the knowledge of Mr Merity.

  16. Paragraphs 4 and 5 of the affidavit refer to the claim that the appellant and Mr Smits picked up the appellant’s mail from the mailbox of unit 4 on 11 June 2014 and on that date one of the items cleared was a copy of the Notice of Order referred to in paragraph 3 above. Paragraph 5 of Mr Smits affidavit contains verbatim reports of an alleged conversation between the appellant which I reproduce because of findings made by me below:

‘4. At approximately 4PM on 11 June 2014, the Appellant and I drove to Unit 4 and she cleared her mail box there. One of the items there which she opened in my presence was a NOTICE OF ORDER dated 02/06/14 from Jeffery Smith, an Adjudicator of the Tribunal, which was accompanied by the Orders and Reasons for Decision made on 30 May 2014 (“the Decision”]. I then wrote upon it “rec’d 11/06.”

5. I recall our conversation at that time was in words to the following effect:

Leo: “Liana, the Adjudicator has dismissed your Application. It will be necessary to study the Reasons for the Decision to see if it is appellable. It says you have 28 days to Appeal it to the District Court but only on errors of law. That means you cannot dispute or retry the facts. What troubles me is that you only received it today, but it is dated 2 July”

Liana: “As you know, the postie is a really friendly guy and helpful. He always uses our buzzer to come down and collect the mail or leaves a card to collect items from the Post Office. I have had a number of thefts from my post box and have complained about it to the Post Office and Paypal. I have also complained to John about one of his children stealing things from my car.”

Leo: “As you know, I answer the buzzer calls of the postman every day and have a chat with him when I am home. He made no mention of any uncollected mail between 2 and 11 June to me, as he always does if I have missed any item. I will call the Tribunal tomorrow to see if I can collect your Exhibits, including your photos and copy the Respondent's Exhibits. I will write the date of service on the Notice.” I then wrote “rec'd 11/06” on the NOTICE.

Liana: Yes I received no Collection Notice from the Post Office for this Letter. It was stuffed into my mail box with most of it hanging out. The postie never does that. He takes it back to the Post Office and leaves a Collection Notice if it does not fit into the box. It must have been intercepted by someone, who put it in the box later. It was probably John. I would not put anything past him.” ’

  1. Mr Smits next deposes that he contacted the Registry on and after 12 June 2014, seeking access to “those documents” which I infer is a reference to the appellant’s “exhibits” filed in relation to the adjudication. Without summarising all the issues deposed to, Mr Smits does state that he was advised the appellant had 21 days to appeal the adjudication decision to the Tribunal (rather than 28 days to a Court as stated on the Notice itself). Mr Smits states that he “caused” the appellant to file an appeal application on 1 July 2014, “within 21 days after 11 June 2014”. Email correspondence is annexed to Mr Smits’ affidavit dated 12 June 2014.

  2. Mr Smits next refers to correspondence and meetings with Mr Merity in relation to attempting to negotiate a settlement of the issues between the parties.

  3. In relation to Ms Cocking’s affidavit of 26 August 2014, Mr Smits notes that the Notice of Order was sent to all of the respondents c/- of Strata Plus as their address for service. Mr Smits then deposes at paragraph 12 of his affidavit in relation to inspecting the records of Strata Plus and “emphatically” denies Ms Cocking’s evidence of 08 April 2014 in relation to producing all the records of strata plan 76899 but does not state what is the relevance of that evidence to this preliminary decision.

  4. Paragraphs 13 to 23 inclusive relate to a number of issues, but principally in relation to negotiations to resolve the issues between the parties based on a consideration of the works or the cost of the works, and the payments made by Ms Cocking to the appellant and discussed in paragraph 12 above. Mr Smits states that he finds Mr Merity to be unscrupulous and dishonest and that “serious credit issues” may need to be determined by the Tribunal, and seeks leave to cross-examine Mr Merity and Ms Cocking “at the hearing”, on the basis that “Meadows M foreshadowed on 13 August 2014 that cross examination will not be allowed in the absence of most compelling reasons to do so”.

  5. Mr Smits then states in paragraphs 24 to 27 of his affidavit that he was assaulted by Mr Merity and that the respondents will suffer no prejudice if Ms Cominos and her firm appear for the respondents in lieu of Mr Merity.

  6. Finally, Mr Smits states that the appellant advised him on 8 September 2014 that there was no Notice Board at the premises upon which the subject Orders of 30 May 2014 were displayed, and that no copy of the order was given to the appellant by the Owners Corporation. The final paragraph of Mr Smits affidavit states that the appellant relies on affidavits and submissions intended to be filed on 10 September 2014 to show the appeal should not be dismissed, referring not to this preliminary issue but to the merits of the appeal.

RESPONDENTS’ SECOND SUBMISSIONS

  1. The respondents’ second submissions are contained in a further affidavit from Mr Merity sworn 15 September 2014. The affidavit is in response to Mr Smits’ affidavit sworn 9 September 2014 and summarised above. As Mr Merity deposes in paragraph 3 of his second affidavit:

“In his affidavit, Mr Smits makes a number of very serious and disturbing allegations against me personally and against my young children. They are completely untrue. Whilst I regard the allegations as being largely irrelevant to the matters to be determined by the Tribunal in these proceedings, I feel compelled to respond to them. Not only are they both outrageous and inflammatory, but they also accuse me of serious and unlawful conduct.”

  1. The first allegation referred to by Mr Merity is he has been acting as an unqualified legal practitioner in the proceedings. Mr Merity gives a brief history of his career as a solicitor in NSW and elsewhere and provides a copy of an email dated 10 September 2014 from Mr Smits to 6 persons attaching various documents by way of service. This email alleges Mr Merity is the “legal representative” of the respondents and that he may have breached Solicitors Rules and that the recipients should obtain independent legal advice. Mr Merity seeks to refute these allegations by the evidence provided in his affidavit.

  2. The second allegation discussed is that Mr Merity knowingly made a false statement to the Tribunal. This is a reference to paragraph 3 of Mr Smits’ affidavit discussed in paragraph 31 above. Mr Merity notes that the crucial phrase is “at all material times” and that this refers to the period from April 2014 and notes that Mr Smits himself deposes to living “intermittently” at the unit and gives his residential address as unit 4.

  3. The third allegation refers to the complaint made by the appellant in the words ascribed to her in Mr Smits’ affidavit and extracted in paragraph 32 above. Mr Merity deposes that his daughter is two and a half years old and his son is six months old. He describes the allegation as preposterous, disturbing and scurrilous and also denies any such complaint of theft was ever made to him.

  4. The fourth allegation, that Mr Merity intercepted the appellant’s mail, is also contained in the conversation extracted in paragraph 32 above. Mr Merity states this is also false, is a serious allegation involving the commission of a Commonwealth offence and is made without supporting evidence.

  5. The next allegation is the description of Mr Merity by Mr Smits in paragraph 23 of his affidavit, referred to in paragraph 36 above. This is described by Mr Merity as untrue, completely unfounded, vague, unparticularised, a bald allegation unsupported by evidence, serious and specious.

  6. The final allegation referred to by Mr Merity is that he assaulted Mr Smits. Mr Merity deposes that this extremely serious allegation is false. Mr Merity describes in some detail his version of the event and provides a contemporaneous report prepared by him and sent to five people as part of his report of the directions hearing of 13 August 2014.

  7. Finally, Mr Merity states his belief that the false allegations demonstrate the mala fides of Mr Smits and the appellant and are evidence, among other things, of an abuse of process of the Tribunal.

CONSIDERATION AND DECISION

  1. No doubt the general character of the relationship between these parties (including Mr Smits) is clear from the above summaries.

  2. I intend to deal first with a number of the submissions of the appellant in relation to the powers given by various sections of the Act and the NCAT Act mentioned by Mr Smits.

  3. It is necessary to remember, first, that in these proceedings The Tribunal is dealing with an appeal from an adjudicator’s decision. The Adjudicator’s decision is completed. These appeal proceedings are at an interlocutory stage, with orders made in relation to the service of evidence by both parties and a determination of the preliminary issue raised by the respondents, that the appeal is out of time—the subject of this decision and reasons.

  4. In relation to the submission in relation to s 63 of the NCAT Act (paragraph 16 above), I note that section commences with the words:

“(1)   If, after the making of a decision by the Tribunal, …” [emphasis added].

At this stage, there is no decision by the Tribunal. There is an Adjudicator’s decision, but an adjudicator is not the Tribunal. S 63 has no relevance to this decision. This submission is misconceived.

  1. In relation to the submission that the Tribunal should “set aside” the decision of the Adjudicator (paragraph 18 above) pursuant to s 53(4) of the NCAT Act, I note that the section is contained within Part 4 of the NCAT Act “Practice and Procedure”. Division 4 of that Part is headed “Conduct of Proceedings” and s 53 is as follows:

53   Amendments and irregularities

(1)   The Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice.

(2)   Any such amendment may be made:

(a)   at any stage of the proceedings, and

(b)   on such terms as the Tribunal thinks fit,

but may only be made after giving notice to the party to whom the amendment relates.

(3)   If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise.

(4)   The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings.

Mr Smits’ submission is that the Tribunal should use this provision to set aside the earlier proceedings, that is, the adjudication. One would hope that even on the first cursory reading of the section it is obvious that the submission is misconceived. The section cannot be applied to earlier proceedings, and even more it cannot be applied to an adjudication which is not even a Tribunal proceeding at all. There is no submission that the adjudication proceeding required amendment or that there was any irregularity therein: the objection the subject of the submission is to events that occurred once the adjudication decision was made. This submission is misconceived.

  1. In relation to the submissions in paragraph 19 above to the effect a request for an extension of time is an interlocutory matter and that therefore a request for an extension of time in relation to an internal appeal under s 32 of the NCAT Act is permitted without any limitation bar pursuant to s 4(1) of the NCAT Act, the first comment I make in response to that submission is that an appeal from an Adjudicator’s order is an “external appeal” to the Tribunal, not an “internal appeal” pursuant to s 32 of the NCAT Act. The second response is that s 177(4) of the Act provides that s 4(1) of the NCAT Act does not apply in relation to the time periods referred to in s 177(3). This submission is misconceived. At this stage, I note Mr Smits made a separate submission about s 177(4) to which I will return below.

  2. The submission in relation to s 80 of the NCAT Act (paragraph 20 above) does not appear to me to be relevant to this decision. In any case, as I have already noted, this is an external appeal whereas s80 relates to internal appeals. (Even so, the provision contains nothing relevant to the time issue the subject of this decision.) This submission is misconceived.

  3. In paragraph 21 above I refer to the “general rule” submission that an appeal must be filed within 28 days of the date the party was notified of the decision and that this was clear on the face of the order. This submission requires some comments but on the basis that the appellant, later in her submissions, recognises that for the purpose of this decision, the relevant time periods are contained within s 177(3) of the Act. However, for the sake of completeness, I should note that in my opinion the Notice of Order as sent to the parties on 2 June 2014 by the Tribunal following the adjudicator’s decision in fact contains incorrect information. It is a confusing situation, because the Notice of Order is clearly a Tribunal document and to all appearances therefore is a Tribunal order—except that it is made pursuant to the named Adjudicator. The order is actually made by an Adjudicator, not the Tribunal, and the second dot point under the heading “Please read this information carefully” is wrong and is not applicable to an Adjudicator’s order. It refers to “the only right of appeal against an order of the Tribunal made at hearing”: this was not an order of the Tribunal and there was no hearing. Next, the dot point states: “is to the District Court on a point of law”: that does not apply to an Adjudicator’s order (noting of course that the situation has altered with the abolition of the CTTT and the establishment of NCAT). Finally, the dot point states: “and must be made within 28 days of the date the order is made”: the period is not 28 days (pursuant to s 177(3) as noted above) and the time period in any case does not commence to run from the date of the order, but from the date the order is received by the party seeking to appeal. Mr Smits’ submission that the latter point “was clear on the face of the order” is incorrect. However, as already noted, I consider the appellant is not in fact relying on this submission in any case.

  4. In paragraph 22 above, I note the submission that the order must be served on the parties by “the principal registrar” as distinct from the Adjudicator, and submits that the principal registrar did not do so in this case. To the extent this submission may mean that the Principal Registrar (as opposed to any other person or officer) did not serve the notice, that is correct but is of no legal significance in my opinion so as to affect any decision whether the Order was served on the appellant. (I should note that it is not clear to me that the submission is actually in relation to that issue in any case.) If the submission is that the Order was not served on the appellant, as opposed to the strata manager or the Owners Corporation or an office of the Owners Corporation, in my view that is factually incorrect. The Tribunal adjudication file contains copies of the Order as posted, including one addressed to the appellant by name at the address of unit ***** Bellevue Hill NSW. I find that the order was posted to the appellant at that address. Whether that amounts to service properly performed, and whether the service was by any particular date, are matters to which I will return below.

  5. In paragraph 23 above I refer to the appellant’s submission that s 174(2) of the Act was not complied with in that a copy of the order was not placed on a notice board in the scheme nor served on the appellant. S 174 of the Act states:

174   Copy of order to be served

(1)   A copy of an order of an Adjudicator under this Part must be served by the principal registrar on:

(a)   the owners corporation for the strata scheme to which the order relates and, in the case of a leasehold strata scheme, the lessor under the scheme, and

(b)   the applicant for the order, and

(c)   any person who duly made a written submission to an Adjudicator in connection with the application, and

(d)   any person against whom the order was sought and any other person who, by the order, is required to do, or to refrain from doing, a specified act.

(2)   On receipt of a copy of the order, the owners corporation must, unless the order otherwise provides:

(a)   cause it to be prominently displayed, within 72 hours of its receipt and for 14 days after that, on any notice board required to be maintained under the by-laws, or

(b)   if no notice board is required to be maintained under the by-laws, cause a further copy of the order to be given to each person whose name appears on the strata roll.

(3)   In this section, order includes a variation of an order, an interim order and a renewal or revocation of an interim order.

There is evidence before me (being copies of the order posted to various parties including the appellant) that the registrar complied with s 174(1): service by post is permitted and I find that by posting the Order to the strata manager the registrar has complied with subsection (a). I find the order was also served by post in accordance with subsections (b) to (d). There is no evidence before me that the owners corporation complied with s 174(2)(a) (and there is no evidence that such a notice board was maintained) nor with subsection (b). I will have more to say about service of the Order below.

  1. The appellant’s submission in relation to s 210 of the Act (see paragraph 24 above) is unclear. The appellant draws particular attention to s 210(2) to the effect that s 210 does not apply if express provision is otherwise made by “this Act” or in the order itself. The appellant then goes on to submit that “service of an order is not deemed to take effect in the absence of compliance with the express requirements of Sections 174, 177 and 210, as in this case”. If the appellant is attempting to submit that s 210 does not apply because of express provision made in s 174 and s 177, it appears there is some misunderstanding of the effects of those three sections. Section 210 states that an order takes effect when a copy of the order is served. Section 174 states on whom a copy of the order must be served and what one recipient (the Owners Corporation) must do in turn when it has received the order. There is no overlap between those two sections. Section 174 describes service, section 210 states when the order takes effect. Section 177 states the time limits within which an appeal must be made after the order takes effect. Again, there is no express provision stating when an order takes effect, other than s 210. All three sections must be given their full scope and as I understand their submissions, the respondents make no submission to the contrary. The appellant appears to be submitting in relation to a non-issue.

  2. In paragraph 25 above I summarise the appellant’s submission in relation to s 190 of the Act. That section provides that the Tribunal may vary an order so as to correct or clarify it or to extend a time limit. In my opinion it is quite clear that “an order” must refer to an order of the Tribunal (this is an expression of the “slip rule”, in other words). I note that s 190 is contained within Division 2 of Part 5 of Chapter 5 of the Act. Chapter 5 is concerned with “Disputes and orders of Adjudicators and Tribunal”; Part 5 of that Chapter is concerned with “Orders of Tribunal” and Division 2 of Party 5 is concerned with “Provisions relating to orders of Tribunal”. There is no provision that the Tribunal may vary an adjudicator’s order for those purposes. Of course, the chapeaux to sections of an Act are not part of the Act themselves, but nevertheless they are useful for helping a reader understand the nature of the actual sections. So far as s 190(2)(c) is concerned, the “original order” the applicant (here the appellant) applied for are the orders contained in the Appeal Application, not the Adjudication application, and there is no power in s 190 for the Tribunal to extend the time limit in the adjudicator’s order, as requested in paragraph 44 of the appellant’s submissions. Furthermore, the submission that “none of the grounds in Section 185 were held to be applicable” is subject to the same misconception. S185 is contained within the same Division as s190 and has nothing to do with this appeal.

  3. I next turn to the appellant’s submissions (summarised in paragraph 26 above) in relation to the asserted “primacy” of the NCAT Act over the Act in relation to s 41(1) of the NCAT Act. With great respect to the appellant and to Mr Smits, this submission appears to me to reflect a fundamental misunderstanding of basic legislative interpretation and of the legislation governing the Tribunal in particular. As summarised above, it is submitted for the appellant that s 41(1) of the NCAT Act must take precedence over s 177(4) of the Act. Now it must certainly be acknowledged that the terms of s 41(1) are very broad and very definite:

41   Extensions of time

(1)   The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2)   Such an application may be made even though the relevant period of time has expired.

However, a general term in an Act does not displace a particular term of the type contained in s 177 of the Act:

(4) Section 41 of the Civil and Administrative Tribunal Act 2013 does not apply in relation to the periods referred to in subsection (3).

That section was clearly and obviously amended by the insertion of sub-section (4) consequentially to the introduction of the Civil and Administrative Tribunal Act 2013—or is the appellant asserting that sub-section 4 is to be ignored, or is to be interpreted to mean the opposite of what it clearly states, or that the Parliament was confused and didn’t mean to include that sub-section at all? The submission to the effect that the Tribunal controls its own internal practice and procedure does not extend to either giving itself jurisdiction not given by legislation or denying its jurisdiction given by legislation. I have already dealt above with the appellant’s apparent understanding that adjudicators “operate from within the Tribunal”. How “[t]hat submission is reinforced by Section 190 of the Strata Act” is unclear to me, given my findings above in relation to that section.

  1. Paragraph 28 above summarises further submissions of the appellant which, in my respectful opinion, simply cannot be understood. I will deal with each of them in turn.

  2. Paragraph 53 in the appellant’s submissions is as follows:

“53   The Submission of the Respondents is in effect that both Order 1 took effect and was spent from the moment it was served, so as to become redundant if merged in the Decision in the absence of new enforcement or curial proceedings. They submit that Order 2 took effect on 24 August 2014, regardless of when it was served upon the Applicant.”

This submission does not refer to which particular submission of the respondents it is replying. I can find no submission of the respondents which appears to me to state anything to the effect that “both Order 1 took effect and was spent from the moment it was served, so as to become redundant if merged in the Decision in the absence of new enforcement or curial proceedings”. There is simply nothing in the respondents’ submissions to that or any remotely similar effect. Similarly, there is nothing in the respondents’ submissions to the effect that order 2 took effect on 24 August 2014 regardless of when it was served on the applicant (appellant). It may be that the date is simply a mistake, and it was intended to state “24 June 2014” which is when the respondents submit that the 21 day period for lodging an appeal expired. This latter submission of the respondents was based on their submission that the order was served on the Owners Corporation on 3 June 2014 and took effect on that date pursuant to s 210 of the Act and so the 21 day period would expire on 24 June 2014.

  1. The next submission summarised in paragraph 27 above is as follows:

“54 Further, they submit in effect that a sidewind effect of Section 210 (1)(b) of the Strata Act is that an Applicant can be barred from a right of Appeal simply by service of an Order upon her Respondent (the Owners Corporation), despite its failure to notify the Applicant of the making of the Order under Section 174. … No evidence of compliance with Section 174 was filed by the Respondents. The Appellant denies any such compliance. That proposition seems to be nonsensical for obvious reasons, including that a party cannot rely upon its own statutory contraventions to defeat rights of Appeal.”

The term “sidewind” is new to me in this context. The submission appears to be asserting that the alleged failure of the Owners Corporation to display the order on a noticeboard, or, if no notice board is required to be maintained under the by-laws, cause a copy of the order to be given to each person on the strata roll. I note that neither party filed any evidence in relation to that procedure. The appellant is stating, it seems to me, that s 210(2) cannot mean that the order takes effect from the moment the order is served on the Owners Corporation, because in that case it is possible that the order takes effect and the time period for lodging an appeal commences to run in circumstances where, as it is alleged in this case, an interested party has not seen or become aware of the order. The appellant states that “[t]hat proposition seems to be nonsensical for obvious reasons, …” In my view, and I find, s 210(1(b) is quite clear. Any reasonable person (including members of Parliament) would understand that the Owners Corporation is not the individual owners. It is obvious that in order for individual owners to become aware of the order, the Owners Corporation must do something to bring it to their attention. What it must do is set out in s 174 of the Act—but that does not provide that it is not until then that the order takes effect. There is no express provision to the contrary in the Act or in the order itself by which s 210(2) is engaged. Whether the individual owner or occupant (in this case specifically, the appellant) is aware of the order or not, it took effect on the date it was served on the Owners Corporation.

  1. The next submission referred to in paragraph 27 above is as follows:

“55   Further or alternatively …, any omission to exclude the application of Section 210 in the Adjudicator's Orders can be cured by the Tribunal or remitted to and rectified by the Adjudicator under the Slip Rule.”

This is another example, in my respectful opinion, of the appellant’s misunderstanding of the law relating to adjudication decisions and an appeal therefrom to this Tribunal. It is surprising that a former solicitor of Mr Smits’ apparent experience would offer such submissions. There is no provision anywhere in the Act for an Adjudicator’s decision to be remitted to the adjudicator for rectification under the slip rule, except pursuant to s 171 of the Act. That section permits an adjudicator to vary an order for the purpose of correcting or clarifying it or for “extending a time” but that does not include such an extension of time as is being sought by the appellant here. There is no provision in the Act for anyone to extend time except as specifically provided in the Act, here in s 177 of the Act. There is no provision at all for the order to be “cured” by excluding the application of s 210. It is unclear how the appellant, or rather Mr Smits, envisages that such a power exists. To suggest that a Tribunal, or rather an adjudicator, can simply decide to exclude a section of the very act which gives jurisdiction in the first place, seems to me to indicate a person without an understanding of basic legal principles. In any event, I reject the submission.

  1. The appellant submits in general that it is in the interests of justice that a party adversely affected by a decision should receive a copy of the notice of order, and that is also the purpose of s 174 of the Act. It is said that there would be a serious inconsistency and unfairness in the Acts if a party lost their rights simply because they did not get a copy of the order.

  2. As noted above, it is the primary position of the appellant that she did receive a copy of the order, but not until 11 June 2014

  3. It is also a primary submission of the appellant that she filed her appeal within time pursuant to s 177 of the Act, being within 21 days of 11 June 2014.

  4. I find that the NCAT Act provides as follows:

  1. an appeal against an adjudicator’s order is an external appeal to the Tribunal;

  2. the Tribunal has no power to extend the time for lodging an appeal application pursuant to s 41(1) because of the effect of s 177(4) of the Act;

  3. the Tribunal has no power pursuant to the NCAT Act to amend or vary an adjudicator’s order except by the external appeal process.

  1. I find that the Act provides as follows:

  1. an adjudicator’s order must be served on the owners corporation, the applicant for the order, any person who made a submission, any person against whom the order was sought and any other person who, by the order, is required to do or refrain from doing, a specified act;

  2. the order takes effect, in this case, when a copy of the order is served on the owners corporation;

  3. any appeal against the order must be filed:

  1. within 21 days after the order takes effect if the order dismisses an application; or

  2. within 21 days after the order takes effect which may by leave be extended to 90 days after the order takes effect in the case of any other order;

  1. the Tribunal has no power to extend the time periods set out in the previous paragraph;

  1. I turn now to consider the submission of the appellant that a copy of the notice of order made by Adjudicator Smith was not received by the appellant until she retrieved a copy of that order from her mailbox on 11 June 2014. The evidence in that regard is contained in the affidavit sworn by the appellant on 10 September 2014 and the affidavit sworn by Mr Smits on 9 September 2014 and headed “Affidavit re Limitation Issue”. I note that the appellant’s affidavit states that she agrees with the matters deposed to by Mr Smits and attached a series of emails between the appellant and Paypal in relation to disputes over non-receipt of goods purchased online and paid through Paypal. The actual evidence in relation to receipt of the Notice of Order is contained in the several paragraphs extracted above in paragraph 32 from Mr Smits affidavit.

  2. I do not accept that evidence as true. My reasons are as follows:

  1. even allowing for the usual disclaimer that the words quoted are not said to be verbatim, but rather “to the following effect”, the conversation appears to be remarkably stilted, artificial and unlikely. In my considerable experience of witnesses, affidavits and general interaction with others, people simply do not talk like that;

  2. further, the conversations as presented overwhelmingly appear to have been carefully crafted to the help the appellant’s case in this preliminary hearing;

  3. there is no evidence that the appellant, or Mr Smits, was residing in the premises between 3 June and 11 June 2014 and that one or other of them was checking the mailbox each day;

  4. there are frankly bizarre allegations by the appellant to the effect that Mr Merity’s children would steal from the mailbox as, it is alleged, they steal from the appellant’s motor vehicle. In that regard I accept the evidence in Mr Merity’s second affidavit and summarised in paragraph 42 above in relation to the ages of his children

  5. the equally bizarre allegation that Mr Merity would intercept and steal mail intended to be placed in the appellant’s mailbox, noting the lack of evidence in that regard and the lack of any indication that the appellant has taken appropriate steps in relation to the alleged behaviour;

  6. the freedom with which Mr Smits also makes extremely serious allegations elsewhere in his affidavit, to the effect that:

  1. Mr Merity would wrongly attempt to assert the substantive matter was completely settled by causing a cheque to be sent to the appellant, had the appellant banked that cheque;

  2. that Mr Merity is unscrupulous and dishonest; and

  3. that Mr Merity assaulted Mr Smits on 13 August 2014 within about eleven months of Mr Smits having extremely major cardiac surgery, without any evidence of such assault, without evidence that any action was taken by Mr Smits to be medically examined after such alleged assault and without any evidence that Mr Smits has taken any of the usual steps following such an alleged assault such as reporting the matter to police or taking steps to seek an apprehended violence order against Mr Verity. That he has not apparently done so in such circumstances is remarkable and casts extreme doubt on Mr Smits’ version of the incident, in my opinion.

  1. I make the following findings of fact:

  1. the Registry posted copies of the orders made by Adjudicator Smith on 30 May 2014 by letter dated 02 June 2014 to the following:

  1. the owners corporation care of the strata manager;

  2. the three respondents separately at their individual Lot addresses;

  3. the secretary of the owners corporation; and

  4. the appellant at her Lot address,

copies of which letters are retained on the original Adjudication file.

  1. all the above parties received those letters, or those letters were available to be received, at the various addresses by 3 June 2014;

  2. the appellant received a copy of the Notice of Order on 3 June 2014 or the Notice of Order was in her mailbox and ready for collection by her on 3 June 2014.

  1. In my opinion, the effect of the Act is that the order took effect on the date the owners corporation received the Notice of Order.

  2. The apparent failure of the owners corporation to cause a further copy of the Notice of Order to be placed on a notice board or alternatively to be given to each person on the strata roll including the appellant does not mean that the appellant failed to receive a copy of the Notice of Order. Further, the apparent failure of the owners corporation to comply with s 174(2) does not mean that s 74(1) has not been complied with or that the appellant has suffered an injustice, given my previous factual findings.

  3. I have carefully perused the voluminous grounds of appeal filed by the appellant in this matter. I agree with the submission of the respondents that three of those grounds, namely numbers 2, 29 and 30 relate to order 1 made by Adjudicator Smith, while the remaining grounds do not relate to order 1 and are therefore covered by order 2 in relation to the matters dismissed by Adjudicator Smith. I find that only order 1 may be subject to an application for leave to file an appeal within 90 days pursuant to s 177(3)b)(ii). The remaining grounds of appeal were required to be filed no later than 24 June 2014.

  4. The effect of s 210 of the Act is quite clear and in definite terms. There is no dispute that the Notice of Order was served on the Owners Corporation on 3 June 2014. There is no dispute, even on the evidence of the appellant, that she was aware of the order on 11 June 2014 and she should have been aware that she had until 24 June 2014 to file her application for an appeal in relation to those items which were dismissed by the Adjudicator. There is no dispute that the appeal was filed some time after that date.

  5. In my view, the Act is clear and the respondents are correct in their submission that there is no power to extend the time for filing an appeal beyond the 21 days permitted in relation to an order dismissing an adjudication application.

  6. In my opinion, it is appropriate to consider this appeal as relating to each of the orders made by Adjudicator Smith on 30 May 2014 and further that it is necessary to consider the grounds of appeal in the manner submitted by the respondents: that is, some of the orders sought by the appellant in the original application for an Adjudicator’s order were dismissed and one order was made in favour of the appellant although perhaps in terms not sought by the appellant. It should not follow that one order being made for work to be done means that the entire order should be considered in terms of s 177(3)(b) for the purposes of finding whether the appeal was commenced in time. The reverse is also true—the fact that Adjudicator Smith ordered that “The application is otherwise dismissed” does not mean that the appellant may seek an extension of time in relation to order 1.

  7. To the extent that the appellant may be seeking leave to file an appeal against order 1 within 90 days of the order taking effect (which is not clear from her submissions and evidence), I find that the appellant has not shown sufficient or reasonable or indeed any cause why the notice of appeal was not filed within time and that leave should not be granted for the reasons given above.

  8. The appeal is therefore dismissed.

Geoffrey Meadows

Senior Member

Civil and Administrative Tribunal

24 October 2014

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

Decision last updated: 27 January 2015

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