Liu v The Owners - Strata Plan No 53093

[2024] NSWCA 291

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Liu v The Owners – Strata Plan No 53093 [2024] NSWCA 291

Hearing dates:

2 December 2024

Date of orders:

3 December 2024

Decision date:

03 December 2024

Before:

Basten AJA

Decision:

(1)   Dismiss as incompetent the summons filed in the Common Law Division on 31 July 2024 and transferred to this Court on 9 October 2024.

(2)   No order as to the costs of the proceedings in this Court or in the Division.

Catchwords:

CIVIL PROCEDURE – appeal – purported appeal from District Court judgment on appeal from Local Court – no right of appeal – whether proceedings should be treated as seeking judicial review – no grounds to support reasonably arguable case for review – summons dismissed

CIVIL PROCEDURE – appeal – costs – incompetent appeal – no notice of motion filed by respondent objecting to competency – no order as to costs

Legislation Cited:

Civil Procedure Act 2005 (NSW), Pt 6, Div 1

District Court Act 1973 (NSW), s 127

Local Court Act 2007 (NSW), ss 39, 41

Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW), rr 18.1, 51.12, 51.41

Category:

Procedural rulings

Parties:

Yu Liu (First Applicant) (unrepresented)
Li Wang (Second Applicant) (unrepresented)
The Owners – Strata Plan No 53093 (Respondent)

Representation:

Solicitors:
CCA Legal Pty Ltd (Respondent)

File Number(s):

2024/373046

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Date of Decision:

10 July 2024

Before:

S Cole DCJ

File Number(s):

2024/51596

JUDGMENT

1. BASTEN AJA: The respondent in this Court, The Owners – Strata Plan No 53093, brought proceedings in 2023 in the Local Court seeking to recover unpaid levies under the Strata Plan from the applicants, Yu Liu and Li Wang. The Owners obtained a judgment in the Local Court, entered on 4 December 2023, in an amount of $6,679.23.

2. On 22 December 2023, the applicants filed an appeal in the District Court. The matter came before Judge S Cole who made orders on 10 July 2024 dismissing the appeal “under s 41(2)(d) of the Local Court Act 2007 (NSW)”.

3. On 31 July 2024, the applicants filed a summons in the Common Law Division seeking leave to appeal. The Owners filed an appearance on 12 September 2024. It appears that by 9 October 2024, someone in the Court had noted that the document purported to commence an appeal from a judge of the District Court and that a judge in the Division had no jurisdiction over such a matter. What was apparently not noted was that there was no appeal from a District Court judgment on appeal from the Local Court. Accordingly, the appeal should properly have been dismissed as incompetent.

4. Rather than dismiss the summons, an order was made by the Principal Registrar transferring the proceedings to this Court. An order had been made on 2 October 2024 requiring that the applicants file a white folder in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.12. For some reason the notice was directed to one of the applicants only, but nothing turns on that. Rule 51.12 applies to applicants seeking leave to appeal or cross-appeal.

5. When the matter was first listed before the Registrar in this Court on 4 November 2024, the applicants did not appear and the matter was stood over for further directions on 18 November 2024. A note on the court file indicated that it was then to be referred to the list judge “regarding incompetency of application”. The notice of listing was to be sent to the respondent, as appears to have been done pursuant to a letter dated 19 November 2024. There was no reference to incompetency in the letter.

6. On 18 November 2024, the respondent did not appear, but Mr Liu did. There is a notation on the court record that the orders of 4 November appear not to have been entered. The respondent was apparently informed of the subsequent listing.

7. The court file is silent as to what happened on 25 November 2024, but it may be inferred that the matter was stood over to Monday, 2 December 2024, as both parties appeared on that day.

8. Although the solicitor for the respondent had not filed a notice of motion seeking to have the matter dismissed as incompetent, her oral submissions were to that effect.

9. Given the level of confusion and uncertainty which has attended the proceedings so far, it is desirable to set out precisely the legal standing of the parties and the proceedings. Although Mr Liu disarmingly eschewed any intention to deal with legal matters, the Court is not able to disregard those issues.

10. The first point to note is that the appellate jurisdiction of every court in this State depends upon statute. Although there is an appeal from the Local Court in its General Division to either the District Court or the Supreme Court, the only appeal from a judgment or order of the Local Court in its Small Claims Division (which this case was) lies to the District Court: Local Court Act 2007 (NSW), s 39(2). That appeal is limited to “the ground of lack of jurisdiction or denial of procedural fairness”.

11. The second point is that appeals from the District Court in its civil jurisdiction are provided for by s 127 of the District Court Act 1973 (NSW). An appeal does lie to the Supreme Court, but only from a judgment or order “in an action”. The term “action” does not include an appeal from the Local Court. There are many decisions of this Court which have affirmed that proposition. It follows that there is no right of appeal to the Supreme Court (or any other court) from a decision of the District Court in a civil matter on appeal from the Local Court.

12. Having reached that point, it is clear that the summons seeking leave to appeal from the District Court to this Court was incompetent for the simple reason that there is no right of appeal, with or without leave, from the District Court in a civil matter which was an appeal from the Local Court (as this was). However, and no doubt confusingly to the lay person, there is a right of review of a District Court judgment by this Court in the exercise of its supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). This form of review is limited to establishing jurisdictional error on the part of the District Court or error of law on the face of its record. It does not extend to other forms of error of law, nor to factual errors.

13. The summons, in its present form, does not purport to engage the supervisory jurisdiction of this Court. Nevertheless, it is possible for this Court to waive compliance with the rules and treat the summons as invoking the supervisory jurisdiction if that course appears to be appropriate to allow the real issues in dispute to be identified and disposed of as speedily, fairly and cost-effectively as possible, pursuant to Pt 6, Div 1 of the Civil Procedure Act 2005 (NSW).

14. That course will not be taken unless it is possible from the documentation filed in the Court (i) to identify what are the “real issues” in dispute between the parties; (ii) to identify an issue which involves jurisdictional error or error of law on the face of the record, and (iii) to be satisfied that that issue is at least reasonably arguable.

15. At the hearing, the applicants identified their complaints in the following terms. There had been, as the respondent accepted, confusion as to the proper address to which a strata levy notice should be sent. The detail of the confusion was set out in a “witness statement” dated 21 November 2023, filed by the solicitor for the respondent in the Local Court and annexed to Mr Liu’s affidavit dated 16 October 2024 and filed in this Court.

16. Because the strata levy notice was sent initially to the wrong address, the Local Court proceedings had been commenced, including a claim for filing fees, service fees and solicitor’s fees, in circumstances where the applicants had not had an opportunity to pay the levy. However, the applicants wrote to the managing agent of The Owners on 8 May 2023, replying to a notice dated 23 April 2023, and refusing to pay the “extra fee”, which was interest in an amount of $84.29 and expenses incurred in recovering the contributions and interest in an amount of $783. They identified their correct address. A statement of defence filed in the Local Court clearly, and likely with legal assistance, identified that issue. Whether or not they had had proper notice was a factual matter to be dealt with in the Local Court. That judgment was given in that Court for the full amount of the claim implies that not even the levy had been paid at that time.

17. Being unsuccessful in the Local Court, the applicants’ summons in the District Court raised six grounds of appeal, of which two were in general terms and the other four complained of the forms filed in the Local Court, no doubt electronically, not having signatures. As noted above, the jurisdiction of the District Court was limited to grounds identifying jurisdictional error or breach of procedural fairness. Whether or not the forms complied with the technical requirements of the UCPR was not a matter going to jurisdiction, nor a demonstration of procedural unfairness. The present discussion in this judgment concerns whether the applicants should be relieved of their obligations to comply with the rules. Like this Court, the District Court and the Local Court had powers to dispense with procedural rules, if thought appropriate in order to do justice by determining the real issues in dispute. However, the matters raised in the summons commencing the appeal to the District Court provided no basis for any inference that the jurisdiction of that Court had been engaged. That is, the grounds of appeal to the District Court did not identify any absence of jurisdiction or procedural unfairness in the Local Court.

18. The summons filed in the Common Law Division on 31 July 2024 similarly focused on compliance with the UCPR. In particular it was alleged that the judge made orders “based on the written submissions [of the respondent] pursuant to r 18.1 of the UCPR”. However, r 18.1 states that “[a]n interlocutory or other application is to be made by motion unless these rules otherwise provide”.

19. The Owners did not make an application in the District Court: they were entitled simply to rely upon the material which formed the basis of the judgment in the Local Court and submit that the appeal should be dismissed. That appears to be what happened, although there is no transcript of the hearing in the District Court, nor any reasons oral or written, of the District Court judge.

20. It seems likely that the District Court judge gave oral reasons for dismissing the appeal. It is unfortunate that they have not been reduced to writing and been provided. However, there is no basis for inferring that there was ever any evidence before the District Court demonstrating jurisdictional error or procedural unfairness in the Local Court, so that the dismissal of the appeal appears to have been inevitable. Accordingly, there is no basis for allowing the present summons to remain on foot. Even if it were to be treated as a summons seeking judicial review of the District Court orders, it would be dismissed as not providing arguable grounds for review.

21. There is a question as to the proper order for the costs of these proceedings. The respondent has been represented throughout by a solicitor in Tasmania. She appeared at the present hearing by telephone. No agent or person representing the respondent appeared in Court. No motion had been filed seeking to strike-out the proceedings. Indeed, it is not clear whether, or when, the solicitor for the respondent identified a basis for striking out the proceedings. The failure to file a timely motion objecting to competency can have costs consequences, pursuant to UCPR, r 51.41, including depriving a successful respondent of its costs. Although the respondent has been successful in that the proceedings are to be struck out, there will be no order as to the costs in this Court or in the Common Law Division.

22. The Court makes the following orders:

1. Dismiss as incompetent the summons filed in the Common Law Division on 31 July 2024 and transferred to this Court on 9 October 2024.

2. No order as to the costs of the proceedings in this Court or in the Division.

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Decision last updated: 03 December 2024