Nguyen v The Owners - Strata Plan No. 10914

[2025] NSWCATCD 40

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Nguyen v The Owners – Strata Plan No. 10914 [2025] NSWCATCD 40

Hearing dates:

8 May 2025

Date of orders:

2 June 2025

Decision date:

02 June 2025

Jurisdiction:

Consumer and Commercial Division

Before:

Graham Ellis SC, Senior Member

Decision:

1.       The application is dismissed.

2.     Any submissions (not exceeding five pages in length) and any relevant evidence in support of an application for costs is to be provided by the applicant, to the Tribunal and the respondent, by 16 June 2025.

3.     Any submissions (not exceeding five pages in length) and evidence in response are to be provided by the respondent, to the Tribunal and the applicant, by 30 June 2025.

4.     Any submissions (not exceeding two pages) and evidence in reply are to be provided by the applicant, to the Tribunal and the respondent, by 7 July 2025.

5.     Any such submissions are to indicate whether the party agrees that costs can be determined on the papers, without a further hearing.

Catchwords:

LAND LAW – Strata title – whether contributions should be varied – whether to appoint compulsory strata managing agent

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Strata Schemes Management Act 2015 (NSW)

Cases Cited:

3173 Pty Ltd ACN 602788223 v The Owners – Strata Plan No 92183, 20 January 2020, SM Wilson

Ashby v Slipper [2014] FCAFC 15

Bischoff v Sahade [2015] NSWCATAP 135

Bonita v Shen [2016] NSWCATAP 159

Coscuez International Pty Ltd v The Owners – Strata Plan No 46433 [2023] NSWCATAP 147

Cripps v G & M Mawson [2006] NSWCA 84

Foong v Scutella [2021] NSWCATAP 225

Hoare v The Owners – Strata Plan No 73905

[2018] NSWCATCD 45

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Latoudis v Casey [1990] HCA 59

Megerditchian v Kumond Homes Pty Ltd [2014] NSWCATAP 120

Mortlock v Owners of Strata Plan No 55434

[2006] NSWSC 363

News v Cotes [2019] NSWCATAP 186

Oshlak v Richmond River Council [1998] HCA 11

Thompson v Chapman [2016] NSWCATAP 6

Vickery v The Owners – Strata Plan No 80412

[2020] NSWCA 284

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Applicant – Tuyet Nguyen
Respondent – The Owners – Strata Plan No. 10914

Representation:

Applicant – Self-represented
Respondent – C Prestipino, Chambers Russell

File Number(s):

2024/00279551

Publication restriction:

Nil

REASONS FOR DECISION

Outline

1. On 30 July 2024 a lot owner (the applicant) commenced these proceedings against the owners corporation (the respondent), seeking (1) to vary contributions, under s 87 of the Strata Schemes Management Act 2015 (NSW) (the SSMA), (2) orders under s 232, and (3) to have the Tribunal appoint a compulsory strata managing agent, under s 237.

2. After considering the evidence and submissions of both parties, the Tribunal determined that none of those orders should be made for the reasons set out below and, as a result, that the application should be dismissed.

Hearing

3. The applicant was self-represented. Mr Prestipino represented the respondent.

4. At the outset of the hearing, the parties were advised that there would be three stages to the hearing: (1) identifying the documents upon which the parties wished to rely, (2) any questioning of the other party’s witnesses, ie cross-examination, and (3) submissions as to what should be the outcome of the proceedings, and why.

5. Documents admitted as evidence of marked for identification were as follows:

Exhibit A   Documents received from applicant on 8 October 2024

Exhibit B   Documents received from applicant on 11 December 2024

Exhibit C   Documents received from applicant on 31 January 2025

Exhibit D   Documents received from applicant on 7 May 2025

Exhibit 1   Documents received from respondents on 19 November 2024

Exhibit 2   Documents received from respondents on 20 March 2025

Exhibit 3   Statement of Ruby Carr dated 8 May 2025 and attachments

6. There was no request for cross-examination by any party.

7. Closing submissions followed the usual sequence of applicant then respondent then applicant in reply so that each party was able to speak in support of their case and to respond to the case of the other party.

Jurisdiction

8. The issues raised relate to strata-title premises in Mosman to which the SSMA applies. As a result, the Tribunal has jurisdiction to hear and determine this application.

Relevant law

9. Headed “Orders varying contributions or payment methods”, s 87 of the SSMA is in the following terms:

1. The Tribunal may, on application, make either or both of the following orders if the Tribunal considers that any amount levied or proposed to be levied by way of contributions is inadequate or excessive or that the manner of payment of contributions is unreasonable-

1. an order for payment of contributions of a different amount,

2. an order for payment of contributions in a different manner.

2. An application for an order may be made by the lessor of a leasehold strata scheme, an owners corporation, an owner or a mortgagee in possession.

10. The wording of s 237 of the SSMA, headed “Orders for the appointment of strata managing agent”, so far as is presently relevant, is set out below:

(1)   Order appointing or requiring the appointment of strata managing agent to exercise functions of owners corporation The Tribunal may, on its own motion or on application, make an order appointing a person as a strata managing agent or requiring an owners corporation to appoint a person as a strata managing agent—

(a)   to exercise all the functions of an owners corporation, or

(b)   to exercise specified functions of an owners corporation, or

(c)   to exercise all the functions other than specified functions of an owners corporation.

(2)   Order may confer other functions on strata managing agent The Tribunal may also, when making an order under this section, order that the strata managing agent is to have and may exercise—

(a)   all the functions of the chairperson, secretary, treasurer or strata committee of the owners corporation, or

(b)   specified functions of the chairperson, secretary, treasurer or strata committee of the owners corporation, or

(c)   all the functions of the chairperson, secretary, treasurer or strata committee of the owners corporation other than specified functions.

(3)   Circumstances in which order may be made The Tribunal may make an order only if satisfied that—

(a)   the management of a strata scheme the subject of an application for an order under this Act or an appeal to the Tribunal is not functioning or is not functioning satisfactorily, or

(b)   an owners corporation has failed to comply with a requirement imposed on the owners corporation by an order made under this Act, or

(c)   an owners corporation has failed to perform one or more of its duties, or

(d)   an owners corporation owes a judgment debt.

(4)   Qualifications of person appointed A person appointed as a strata managing agent as a consequence of an order made by the Tribunal must—

(a)   hold a strata managing agent’s licence issued under the Property and Stock Agents Act 2002, and

(b)   have consented in writing to the appointment, which consent, in the case of a strata managing agent that is a corporation, may be given by the Secretary or other officer of the corporation or another person authorised by the corporation to do so.

(5)   Terms and conditions of appointment A strata managing agent may be appointed as a consequence of an order under this section on the terms and conditions (including terms and conditions relating to remuneration by the owners corporation and the duration of appointment) specified in the order making or directing the appointment.

(6)-(8)   …

11. The words appearing in that section have been previously considered by courts and tribunal and the decisions in those cases aid the application of s 237 to the circumstances of this case although such decisions obviously do not override the words of that section.

12. In Mortlock v Owners of Strata Plan No 55434 [2006] NSWSC 363 (Mortlock) at [18] contains a description of the earlier equivalent of s 237 of the SSMA as draconian on the basis that it removes the democratic process established by statute. Those words serve to remind that s 237 of the SSMA contains a significant power that requires an evidentiary basis before an order is made under that section.

13. The decision in Hoare v The Owners – Strata Plan No 73905 [2018] NSWCATCD 45 (Hoare) at [202] suggests the fact that lot owners do not agree does not make an owners corporation dysfunctional.

14. Despite dealing with the similarly worded provision in the predecessor legislation, Bischoff v Sahade [2015] NSWCATAP 135 (Bischoff) remains relevant since the grounds for an order to appoint a managing agent did not change. Bischoff at [32] is quoted below:

Circumstances in which the management structure may not be functioning or functioning satisfactorily include where the relevant level of management:

1.   does not perform a required function, for example to properly maintain the common property;

2.   exercises a power or makes a decision for an improper purpose, for example conferring a benefit upon a particular Lot owner or group of Lot owners in a manner not authorised by the SSMA;

3.   fails to exercise a power or make a decision to prevent a contravention by Lot owners and occupiers of their obligations under the SSMA, including the Lot owners and occupiers obligation to comply with the by-laws; and

4.   raises levies and takes or defends legal action on behalf of the owners corporation in circumstances where such action is unnecessary or not in the interests of the owners Corporation or the Lot owners as a whole.

15. Foong v Scutella [2021] NSWCATAP 225 (Foong) at [30] serves to confirm that it is relevant to consider both (1) whether an owners corporation has failed to perform one or more of its duties in the past in order to determine whether the scheme was functioning satisfactorily, and (2) the current state of affairs, in order to determine whether the scheme is functioning satisfactorily.

16. Since the opening words of subsections (1), (2) and (3) of s 237 of the SSMA are “The Tribunal may …”, it is clear the Tribunal’s power is discretionary.

Applicant’s evidence

17. Exhibit A comprises the applicant’s 7 October 2024 affidavit with 20 annexures. That affidavit dealt with eight topics, headed: (1) incorrect records and debits in owner’s ledger, (2) consolidation and registration of by-laws, (3) enclosure of balconies of unit 1 and unit 2, (4) reallocation of unit entitlements, (5) special levy, (6) new garbage bins storage area, (7) strata committee meetings, and (8) functions of strata committee and approval of legal services.

18. Exhibit B, contains the applicant’s 10 December 2024 affidavit with seven annexures, deals with the special levy of $120,000 and Local Court proceedings commenced by the respondent as plaintiff against the applicant as defendant.

19. Exhibit C added 11 documents to the 20 contained in Exhibit A. Those documents were behind tabs numbered 1 to 31.

20. Exhibit D added a 15-page submission, a 7 May 2025 affidavit and five annexures behind tabs A to E.

Respondent’s evidence

21. Exhibit 1 contains a Statement of Claim for Local Court proceedings commenced on 29 April 2024 and a copy of the 20 January 2020 decision of SM Wilson in 3173 Pty Ltd v The Owners – Strata Plan No 92183, under cover of a letter dated 19 November 2024, plus a copy of a letter dated 14 November 2024 that was sent by the respondent’s solicitor to the applicant, inviting the applicant to withdraw her application and foreshadowing a request for costs.

22. Exhibit 2 was the first exhibit to be paginated. Its contents are submissions, with three annexures, including a witness statement from Teresa Repice dated 18 March 2025, and a witness statement from Ruby Carr dated 19 March 2025 which had 15 annexures.

23. Exhibit 3 is the second statement of Ms Carr, dated 8 May 2025, with annexures labelled A to G.

Applicant’s submissions

24. As the applicant’s oral submissions took more than two hours, it was necessary to spend a significant amount of time to consider the details raised in those submissions and the evidence to which those submissions referred. It is now necessary to endeavour to summarise those submissions in a complete but concise manner, without descending to a level of turgid detail.

25. The applicant began by suggesting her complaints in relation to the administration and management of the subject strata scheme ranged over the decade since 2015. She referred to both the previous and current strata managing agents.

26. It is convenient to number those complaints and combine below the applicant’s allegation, the respondent’s reply, and the Tribunal’s decision. There were 20 matters raised by the applicant: three were referred to initially, after which the oral submissions followed the Points of Claim in Exhibit C which raised three matters under a heading of s 232 of the SSMA, eleven additional matters under a hearing of s 237, then three matters relating to s 87.

27. It was then suggested that an attempt had been made to rectify those deficiencies because of these proceedings. The Tribunal’s attention was directed to the written submissions in Exhibit D, at [116]-[147]. It was contended that an extension of time should be granted, and that the “case law and principles” warranted an exercise of discretion in favour of the applicant in relation to s 87. There was also an oral submission that “all four grounds in Bischoff had been met”.

Respondent’s submissions

28. At the commencement of oral submissions, it was indicated that the respondent relied on its written submissions which are the first 14 pages in Exhibit 2. Those written submissions noted the difficulties created by the applicant submitting multiple bundles of documents made it difficult to understand the factual and legal basis for her claims: difficult for the respondent to answer and difficult for the Tribunal to consider.

29. The Tribunal notes the added problem arising from the applicant’s failure to comply with the direction to number pages which made it difficult to locate them during the hearing and refer to them in these reasons.

30. As the written and oral responses to the 20 matters alleged by the applicant have been summarised below, it is only necessary to refer to the other submissions of the respondent.

31. In the written submissions it was contended that no order should be made under s 237 of the SSMA because the applicant’s complaints were either historical, related to the previous strata managing agent, misguided or trivial.

32. As to s 87 of the SSMA, it was submitted that the Tribunal did not have jurisdiction to consider the allegations based on the levy by reason of the prior Local Court proceedings. In relation to any suggestion of a failure to provide documents, it was noted that the applicant could avail of the facility provided by s 182 of the SSMA and indicated that the respondent was willing to provide any document requested by the applicant.

33. Oral submissions updated what was said in the written submissions.

Submissions in reply

34. The applicant’s written submissions in reply are the first 15 pages in Exhibit D. Reference was made to how long each of the members of a strata committee had served on that committee. They went on to include further contentions in relation to the matters listed and dealt with below. Oral submissions in reply have been taken into consideration when considering each of the 20 topics set out below.

Consideration

35. By way of background, the subject strata scheme was registered almost 50 years ago, on 7 June 1976. That strata scheme comprises six lots and relates to a property in Mosman. The applicant owns Lot 6.

36. The applicant’s allegations, the respondent’s reply, and the Tribunal’s decision are set out together below. Rather than attempt to deal with the extreme level of detail, the Tribunal has endeavoured to summarise each of the topics.

1. Allegation: Demolition work that became the subject of a stop work order from the local council: D/A (ie the document behind Exhibit D, tab A). It was suggested there had been a failure by the respondent to comply with the obligation to maintain and repair common property imposed by s 106 of the SSMA.

Reply: The respondent’s case was that a stop work order was issued because the work was covered by a heritage listing and that it had been resolved to apply for a Heritage Exemption from the local council, after which the work would be finalised, noting that the work was to be done on a “like for like” basis, because those stairs were a safety hazard.

Decision: From the evidence, it appears that the work that was stopped was work that was being done to comply with s 106 of the SSMA and that it was only stopped due to a Heritage Listing. There is no evidence that such a listing was known prior to the commencement of the work and the reason for the stop work order is being addressed. There was no breach of s 106 and this topic does not provide support for an order under s 237.

2. Allegation: Not accurately keeping a levy register for the applicant’s lot, based on charges debited to her account: C/24 and D/C.

Reply: It appears that the charges were made pursuant to a by-law but have been reversed. The evidence of Ms Carr (2/200, ie page 200 in Exhibit 2) was that those charges have been reversed, and a copy of the revised ledger has been provided to the applicant.

Decision: Consistent with what was said in Ashby v Slipper [2014] FCAFC 15 at [77], the unchallenged evidence of Ms Carr is accepted. This topic having been addressed. It is now a historical matter. Even if this topic could be said to suggest the strata scheme was not previously functioning in a satisfactory manner, it does not provide support for the view that it is not currently functioning in a satisfactory manner.

3. Allegation: Failing to retain records for at least seven years. This topic was not included in the Points of Claim. It appears to have been raised for the first time in oral submissions when it was said that records for 2017 and 2018 were missing.

Reply: This topic was not addressed in either the written or oral submissions for the respondent.

Decision: It would be procedurally unfair to hold against the respondent a matter that was not included in the Points of Claim and was only raised for the first time in closing submissions. Further, there was no reference to any supporting evidence by the applicant. There is evidence that contradicts this claim, namely the copy of the applicant’s ledger (A/3). This topic is rejected as providing any support for an order under s 237.

4. Allegation: Unauthorised building works, being enclosing of balconies for units 1 and 2: A/[18] (ie paragraph 18 in the affidavit in Exhibit A).

Reply: It was suggested that it was not known when that work was done but the Tribunal notes that the applicant’s evidence was that such work was done between November 2018 and November 2019 without any special resolution or common property by-law. The respondent’s case is that work was approved at a meeting held on 7 May 2025 AGM.

Decision: As the work covered by this topic has now been approved, it is no longer unauthorised and no order for its removal can be justified. Further, this matter cannot now provide any support for an order under s 237 which requires a consideration of the current functioning of the strata scheme.

5. Allegation: Unauthorised building works, being the external installation of an instant gas hot water system for unit 3: C/21. It was alleged that work was carried out in breach of s 108 and s 111 of the SSMA.

Reply: The respondent’s case was that the work was minor work, covered by s 111(3), because it involved replacing an existing, external hot water service that was approved at the AGM held on 21 August 2024.

Decision: Being of the view that this was minor work because it involved replacing an existing system, the Tribunal determines that there was no unauthorised work.

6. Allegation: Failing to enforce by-laws: PoC/[6]-[8] (ie paragraphs 6 to 8 in the Points of Claim) and C/12.

Reply: The respondent’s case, set out in its submissions (2/5-6 at [28]-[35]) may be summarised as follows: (1) the owners of lots 1 and 7 are not breaching by-law 3, (2) warning notices dated 1 October 2024 and 23 January 2025 have been issued to each lot owner (2/172-173), (3) a disposal notice was issued to the owner of lot 1 on 13 March 2025 (2/175), and (4) the applicant is also in breach of by-law 3 (obstruction of common property), by-law 9 (depositing rubbish and other materials on common property), and by-law 15 (garbage disposal).

Decision: A failure on the part of the respondent to enforce by-laws has not been established. Even if that was the case, the Tribunal could not reasonably make an order against the respondent when the applicant appears to be in breach of by-laws. Further, no order can be made against a lot owner who is not a party to these proceedings.

7. Allegation: A proposed re-allocation of unit entitlements which did not proceed: A/[20]-[23] and A/10-13.

Reply: A reallocation of unit entitlements considered but, on 14 April 2025, it was resolved not to proceed with that proposal (3/34).

Decision: There is no obligation to proceed and there is no evidence to suggest there was a basis that fell within the limited grounds set out in s 236(1) of the SSMA that would enable such a reallocation to be made.

8. Allegation: In November 2016 every owners corporation was required to review its by-laws within 12 months which was not done by the respondent: PoC [15], C/[4], A/[16-17], A/6-7.

Reply: This complaint was not accepted. It was contended that, even if this complaint was accepted, any failure of the strata committee more than eight years ago did not reflect adversely on the current committee.

Decision: It is not necessary to determine if this complaint has been proved because, even assuming (in favour of the applicant) that it was proved, it is too old to provide support for a claim that the strata scheme is not functioning satisfactorily now.

9. Allegation: Failing to budget for or implement a 10-year plan for the capital works fund, based on a 27 February 20218 plan: PoC/[18]-[19].

Reply: A new 10-year plan for capital works dated 3 October 2024 has been obtained by the respondent (2/254). Headed “Capital Works Forecast Report”, that document contains a budget.

Decision: Again, it is not necessary to determine if this complaint has been proved because, even assuming (in favour of the applicant) that it was proved, the former plan has been superseded by a new plan and conduct in relation to the former plan is too old to provide support for a claim that the strata scheme is not functioning satisfactorily now.

10. Allegation: Failing to comply with s 108 in relation to changes made to the garbage bin storage area in December 2022: PoC/[20], A/[32] and A/16.

Reply: A 7 May 2025 resolution retrospectively approve the construction of a new garbage bin area, thereby complying with s 108.

Decision: The photos suggest the new garbage bin area is an improvement and any breach of s 108 has now been rectified. Any such breach is too remote to provide support for a finding that the strata scheme is not currently functioning in a satisfactory manner. Further, that breach does not tell against the current strata manager who was not the strata manager in December 2022.

11. Allegation: Paying money from that fund for the new garage bin storage area despite that work being unbudgeted: PoC/[20].

Reply: No specific response to this allegation appears to have been provided, either in writing or orally.

Decision: While the applicant did not point to any evidence in support of this allegation, assuming it to be correct does not add support for an order under s 237 for the reasons set out in relation to (10) above, namely it is not a recent matter and does not involve the current strata manager.

12. Allegation: The owners corporation failing to comply with s 108 by not passing a special resolution prior to creating a new garbage bin storage area: PoC/[21].

Reply: A special resolution has now been passed.

Decision: This matter has now been rectified. As with (10) and (11), this allegation is remote in time and does not tell against the current strata manager. Allegations (10)-(12) relate to the new garbage bin storage area. Even considered together, they are not considered sufficient to justify an order under s 237 as the relevant events occurred more than two years ago, and did not involve the current strata manager

13. Allegation: Decisions being made by the strata committee that should have been made by the owners corporation, namely in relation to that new storage bin area: PoC/[22]-[23].

Reply: The respondent accepted that the resolution that was passed by the strata committee should have been passed by the owners corporation. That was the only instance specified by the applicant in support this broad allegation.

Decision: Even if this matter was recent, it would not, on its own, warrant an order under s 237. As it involves a matter that is more than two years old, and did not involve the current strata manager, its probative force is low.

14. Allegation: Solicitors being authorised by the strata committee instead of the owners corporation – an allegation made orally but not included in the Points of Claim.

Reply: There was a resolution passed by the owners corporation on 7 November 2024 (2/242). It was suggested it was not uncommon for a strata committee to retain solicitors and have that decision later ratified by the owners corporation, for reasons of urgency.

Decision: The Tribunal does not consider it procedurally fair to allow this allegation to be pursued for the first time at the hearing, after the evidence has closed and not until closing submissions are being made. Even if this allegation had been raised in a manner that provided prior notice to the respondent, it would carry little weight since it appears that an initial decision by the strata committee was later ratified by the owners corporation.

15. Allegation: Failing to provide proper notice for strata committee meetings: PoC/[24], C/[13]-[14] and C/27.

Reply: It was said that these matters were historical, related to the previous strata manager, and that the applicant could have used s 182 of the SSMA to obtain documents.

Decision: If notice is not provided for a meeting, s 182 would not assist the applicant as failure to provide a document would not enable the applicant to make a request for a document she does not know exists. However, the Tribunal accepts that these are historical matters that do not involve the current strata manager.

16. Allegation: If an Annual General Meeting (AGM) was held between 1 November 2022 and 31 October 2023, failing to give notice of that meeting: PoC/[25], C/[13]-[21], C/27-28, A/[36]-[53], A/18.

Reply: An extraordinary general meeting (EGM) was held on 26 April 2023, and AGMs were held 10 August 2023 and 21 August 2024. The minutes of the last two of those meetings show that the applicant was present. A copy of the notice and minutes for each of those three meetings was provided at 2/240, 2/234, and 3/64 respectively, as annexures to the witness statement of Ms Carr.

Decision: The was no evidence to contradict that of Ms Carr and her unchallenged evidence is accepted. As a result, the applicant, who bears the onus of proof, has failed to prove this allegation.

Allegation: That a copy of the strata managing agent’s agreement had not been provided until the EGM held on 26 April 2023: PoC/[27].

Reply: There does not appear to have been any specific reply to this allegation.

Decision: The weight of this allegation is low when the agreement was provided at the meeting. Again, this is a historical matter that did not involve the current strata manager.

17. Allegation: The special levy of $120,000 decided at the 2022 AGM should be varied to nil as there was no supporting quote or scope of work: PoC/[28].

18. Allegation: That levy did not comply with s 81 and s 87 of the SSMA: PoC/[29].

19. Allegation: That no repairs or works were identified to justify raising $120,000 from the scheme’s six lot owners: PoC/[29].

Reply: The primary contention of the respondent was that the Tribunal does not have any jurisdiction to consider these three matters, by reason of Local Court proceedings which were commenced prior to these proceedings. It was also contended that the applicant was out of time in relation to her request for an order made under s 87 of the SSMA.

Decision: These three allegations are considered below.

Section 87

37. The relevant sequence of events is summarised in the following table:

Date	Event
29 Apr 24	Respondent commenced Local Court proceedings
30 Jul 24	Applicant commenced these Tribunal proceedings
13 Mar 24	Hearing of the proceedings in the Local Court
14 Mar 25	Judgement delivered in the Local Court
08 May 25	Hearing of the proceedings in the Tribunal

38. In the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), cl 5(7) in Schedule 4 provides as follows:

Effect of pending court proceedings on Tribunal If, at the time when an application is made to the Tribunal for the exercise of a Division function, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue.

39. The decision of SM Wilson on 20 January 2020 in 3173 Pty Ltd ACN 602788223 v The Owners – Strata Plan No 92183 is but one example of how cl 5(7) applies.

40. There are three reasons why the applicant’s request for an order under s 87 is refused.

41. First, by reason of cl 5(7), when the applicant commenced these proceedings, the Tribunal did not have jurisdiction to consider any allegation in relation to the levy that was the subject of the dispute in the Local Court. It is noted that the applicant did not refer to any statutory provision or case law to suggest that the Tribunal acquired jurisdiction because those proceedings have been finalised.

42. Secondly, it is noted that the Tribunal has a discretion as to whether an order should be made under s 87 of the SSMA since s 87(1) commences with the words “The Tribunal may …”. As the order which the applicant now seeks would have the effect of overturning an order of the Local Court, even assuming (in favour of the applicant) that the Tribunal has jurisdiction to make an order under s87 of the SSMA, the Tribunal considers that discretion should be exercised against making any order under that section.

43. Thirdly, r 23(3) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) is in the following terms:

Unless the Tribunal grants an extension under section 41 of the Act, an application must be made-

(a)   in the case where enabling legislation specifies the period within which the application is to be made—within the period specified, or

(b)   in any other case—within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application.

44. Coscuez International Pty Ltd v The Owners – Strata Plan No 46433 [2023] NSWCATAP 147 suggests that the 28-day period should be calculated from when mediation was attempted which, in this case, would be 28 days from 24 October 2022 which is 21 November 2022. As the subject application was lodged on 30 July 2024, it was out of time by more than 20 months.

45. As indicated in r 23(3), s 41 of the NCAT could be invoked to provide the applicant with an extension of time. That section is quoted below:

(1)   The Tribunal may, of its own motion or on the 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.

46. As s 41 commences with the words “The Tribunal may …”, the Tribunal is required to exercise its discretion whether to grant an extension of time. The relevant considerations for the exercise of that discretion were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]:

(1)   Is there proof that strict compliance with the rules will work an injustice on the applicant?

(2)   In the context of a pending appeal, the expiration of the period for appeal gives a vested right to retain the decision in question with the consequences that the time for appealing should not be extended unless the proposed appeal has prospects of success.

(3)   It will usually be necessary to consider:

(a)   the length of the delay,

(b)   the reason(s) for the delay,

(c)   the applicant’s prospects of success, ie whether there is a fairly arguable case,

(d)   the extent of any prejudice suffered by the opponent(s).

(4)   If the explanation for the delay is less than satisfactory and/or if the opponent as a substantial case of prejudice, it may be necessary for the applicant to show substantial merit, not just that it is fairly arguable.

47. In this case, there is no satisfactory explanation for the delay and, far from having substantial merit, the applicant’s claim(s) based on s 87 lack merit. Accordingly, the Tribunal considers the applicant is not entitled to an order that extends the time for making a claim based on s 87 from 28 days to 20 months.

48. For those three reasons, the Tribunal does not consider the applicant can obtain any order based on s 87 of the SSMA in relation to the $120,000 levy imposed by the respondent, of which $22,320 was payable by the applicant.

Section 232

49. The applicant’s Points of Claim raised three allegations in support of an order under s 232, being those numbered (4), (5) and (6) above.

50. It is convenient to here note that, while s 232 provides the power to make an order, cases such as Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284 establish that a basis (ie a reason) for making that order is also required. By way of analogy, a Police officer has a power to arrest but cannot validly exercise that power unless there is a basis for making an arrest.

51. As to allegation (4), unauthorised work which involves a breach of s 108 of the SSMA could provide the basis for an order under s 232, but the work the subject of this allegation is now authorised with the result that the basis for making the order no longer applies.

52. Allegation (5) does not provide the basis for an order under s 232 as the Tribunal determined that the work the subject of this allegation did not involve any unauthorised work with the result that there was no breach of s 108.

53. In relation to allegation (6), while failure to enforce by-laws could provide the basis for an order under s 232, the Tribunal determined that no failure to enforce the by-laws was established and that, even if it could be said that there was such a breach, the Tribunal’s discretion should not be exercised in favour of making any order.

54. As a result, the Tribunal does not consider the applicant is entitled to any order based on s 232 of the SSMA.

Section 237

55. While Foong suggests that whether an owners corporation has failed to perform one or more of its duties in the past is relevant to whether an order should be made under s 237, that decision cannot override the words of the SSMA which impose a test of whether a strata scheme is functioning satisfactorily.

56. Simply stated, the position is that what has happened in the past is relevant to whether a strata scheme is functioning satisfactorily. Put another way, past events can be relevant to the current situation.

57. However, in this case, there are two powerful factors which weigh against making an order under s 237. First, the age of the matters raised by the applicant. Secondly, the fact that the strata managing agent has changed and any relevant conduct of the previous strata manager cannot be attributed to the current strata manager.

58. To those matters must be added the third consideration that matters have been addressed which provides support for the view that the strata scheme which is the subject of these proceedings is now functioning satisfactorily.

59. It is for these reasons that the Tribunal is not satisfied that it should exercise its discretion in favour of making an order under s 237 for the compulsory appointment of a strata managing agent. The applicant’s allegations, both individually and collectively, do not provide a sufficient basis for such an order.

Conclusion

60. As the applicant has failed to satisfy the Tribunal that she is entitled to any of the orders she sought, the application must be dismissed. It remains to consider the question of costs.

Costs

61. The effect of s 60 of the NCAT Act is that s 60(1) provides that “Each party to proceedings in the Tribunal is to pay the party’s own costs” but s 60(2) relaxes that default position by providing that “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”.

62. The following non-exhaustive list of considerations is set out in s 60(3):

(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 the Tribunal considers relevant.

63. Although it common for parties to focus upon whether any of those individual considerations apply, the Tribunal is required to make a global assessment of whether there are special circumstances, having regard to the matters set out in subsection 60(3).

64. It is well-established that the adjective “special” requires circumstances that are out of the ordinary but do not need to be extraordinary or exceptional: Megerditchian v Kumond Homes Pty Ltd [2014] NSWCATAP 120, adopting what was said in Cripps v G & M Mawson [2006] NSWCA 84 at [60].

65. Since s 60(2) commences with the words “The Tribunal may award costs …”, it is clear the Tribunal has a discretion which must be exercised. It is necessary to consider not only whether there are special circumstances but also whether those circumstances warrant an award of costs.

66. However, as the applicant sought an order varying a levy of $120,000, it could be said that the amount in dispute exceeded $30,000. That suggests a need to note that s 35 of the NCAT Act operates to make s 60 subject to r 38(2) of the Rules which provides as follows:

Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if:

(a)   …

(b)   the amount claimed or in dispute in the proceedings is more than $30,000.

67. When r 38 applies there is a general discretion to award costs and it is well established, by decisions such as News v Cotes [2019] NSWCATAP 186, Bonita v Shen [2016] NSWCATAP 159 and Thompson v Chapman [2016] NSWCATAP 6, that: (1) the starting point is that the usual order for costs should be in favour of the successful party, (2) the award is not to punish the unsuccessful party but to compensate the successful party for the costs incurred in the proceedings, and (3) departure from the usual order is permissible if the circumstances favour that course of action.

68. Simply stated, when r 38 applies it is not necessary to establish special circumstances and the usual order is that costs follow the event (ie follow the outcome of the case) unless there is disentitling behaviour by the successful party: Latoudis v Casey [1990] HCA 59, Oshlak v Richmond River Council [1998] HCA 11.

67. As it was not feasible to obtain submissions as to costs without knowing the outcome of the application, it is necessary to include orders to enable written submissions to be made if the respondent seeks an order for the applicant to pay the costs of these proceedings.

ORDERS

70. For the reasons set out above, the following orders are made:

1. The application is dismissed.

2. Any submissions (not exceeding five pages in length) and any relevant evidence in support of an application for costs is to be provided by the applicant, to the Tribunal and the respondent, by 16 June 2025.

3. Any submissions (not exceeding five pages in length) and evidence in response are to be provided by the respondent, to the Tribunal and the applicant, by 30 June 2025.

4. Any submissions (not exceeding two pages) and evidence in reply are to be provided by the applicant, to the Tribunal and the respondent, by 7 July 2025.

5. Any such submissions are to indicate whether the party agrees that costs can be determined on the papers, without a further hearing.

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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: 01 August 2025