Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners - Strata Plan No 64807

[2023] NSWCA 188

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners – Strata Plan No 64807 [2023] NSWCA 188

Hearing dates:

19 June 2023

Date of orders:

14 August 2023

Decision date:

14 August 2023

Before:

Meagher JA at [1];
Stern JA at [2];
Basten AJA at [141].

Decision:

(1)   Leave to appeal is granted.

(2)   Direct that within seven days the applicant file a notice of appeal in the form of the draft amended notice of appeal dated 27 January 2023.

(3)   The appeal is dismissed.

(4)   The applicant to pay the respondent’s costs of the appeal.

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – powers of NCAT – correction under slip rule –proceedings remitted by Appeal Panel without considering fundamental jurisdictional issue – power to vary order and issue second decision

LAND LAW – strata title – caretaker agreements – power to terminate – agreement entered into prior to statutory power to terminate – application by owners corporation to NCAT – power under Strata Schemes Management Act 2015 (NSW), s 72 to terminate agreement

STATUTORY INTERPRETATION – amendment and repeal – caretaker agreement entered into in 2001 – effect of transitional provisions – whether transitional provision applying to one class of earlier agreements by implication excluded other agreements

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 3, 5, 27, 28, 32, 35, 36, 38, 61, 62, 63, 80, 81, 83, Sch 4, cl 5(7)

Civil Procedure Act 2005 (NSW), s 56

Interpretation Act 1987 (NSW), ss 30, 33, 34, 35

Strata Schemes Management Act 1996 (NSW), ss 8(2), 12, 13, 61(1), Pt 1

Strata Schemes Management Act 2015 (NSW), ss 4, 9, 12, 66, 67, 68, 72, 275, Sch 3, cll 1, 3, 15

Strata Schemes Management Amendment Act 2002 (NSW), ss 40A, 40B, 40C, 183A, Sch 4, Pt 4, cl 12

Supreme Court Act 1970 (NSW), s 75A

Uniform Civil Procedure Rules 2005 (NSW), r 36.17

Cases Cited:

Australia City Properties Management Pty Ltd v The Owners – Strata Plan No 65111 [2020] NSWSC 1505

Australian City Properties Management Pty Ltd v The Owners - Strata Plan No 65111 [2021] NSWCA 162

Bruce v Knight (No 3) [2021] NSWCATAP 343

Colley v Futurebrand FHA Pty Ltd (2005) 63 NSWLR 291; [2005] NSWCA 223

Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385; [1995] FCA 943

Expo Aluminium (NSW) Pty Ltd v Pateman Pty Ltd (No 2) [1991] NSWCA 92

Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd [2023] NSWCA 134

Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642; [1906] HCA 71

Lambourne v Baker (No 3) [2022] NSWCA 25

Lawrence v Ciantar (No 2) [2020] NSWCA 186

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 587; [2002] HCA 11

Mutual Shipping Corp of New York v the Bayshore Shipping Co of Monrovia [1985] 1 All ER 520; [1985] 1 Lloyd’s Rep 189

MZXOT v Minister for Immigration & Citizenship (2008) 233 CLR 601; [2008] HCA 27

Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195

R v Cripps; ex parte Muldoon [1984] 1 QB 686

Regis Towers Real Estate v The Owners – Strata Plan 56443 [2002] NSWSC 1153

Roads & Traffic Authority (NSW) v Palmer (No 2) [2005] NSWCA 140

Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446

Sunaust Properties Pty Ltd v Owners of Strata Plan 64807 (No 2) [2022] NSWCATAP 335

Sunaust Properties Pty Ltd v Owners of Strata Plan 64807 Pty Ltd [2022] NSWCATAP 246

The Owners – Strata Plan No 64807 v Sunaust Properties Pty Ltd [2022] NSWCATCD 20

Tonab Investments Pty Ltd v Optima Developments Pty Ltd (2015) 90 NSWLR 268; [2015] NSWCA 287

Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344

Zhiva Living Dural Pty Ltd v Hornsby Shire Council [2020] NSWCA 180

Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2

Texts Cited:

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 October 2002

Explanatory Note, Strata Schemes Management Bill 2015 (NSW)

Category:

Principal judgment

Parties:

Sunaust Properties Pty Ltd t/as Central Sydney Realty (Applicant)
The Owners – Strata Plan No 64807 (Respondent)

Representation:

Counsel:
E Young with L Robb Vujcic (Applicant)
R Gration (Respondent)

Solicitors:
MC Lawyers (Applicant)
DEA Lawyers (Respondent)

File Number(s):

2022/00352028

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Appeal Panel of the NSW Civil and Administrative Tribunal

Jurisdiction:

Internal appeal

Citation:

[2022] NSWCATAP 335

Date of Decision:

27 October 2022

Before:

S Westgarth, Deputy President
I Coleman SC ADCJ, Principal Member

File Number(s):

2022/00118800; 2022/00035175

HEADNOTE

[This headnote is not to be read as part of the judgment]

The owners corporation of a strata scheme brought proceedings in the Civil and Administrative Tribunal of NSW (“the Tribunal”) against the caretaker of that strata scheme (“the Caretaker”), appointed pursuant to a Caretaker Agreement entered into in 2001 (“Caretaker Agreement”). The owners corporation sought and was granted, orders under s 72 of the Strata Schemes Management Act 2015 (NSW) (“2015 Act”), including an order terminating the Caretaker Agreement under s 72(1)(a).

The Caretaker appealed, including by grounds 1 and 2 which contended that s 72 did not confer jurisdiction as regards the Caretaker Agreement which was entered into before the 2015 Act came into effect. On 27 July 2022, the Appeal Panel of the Tribunal (“Appeal Panel”) decided that it did not have jurisdiction to hear the matter on account of the concurrent proceedings in the Supreme Court of NSW. The Appeal Panel remitted the matter to the Tribunal without considering any of the other grounds of appeal before it on the basis that it was not necessary for them to do so.

On that same day, the owners corporation wrote to the Appeal Panel stating that they wished to draw to its attention, under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (“the Tribunal Act”), a failure to deal with the grounds of appeal which went to jurisdiction under s 72 of the 2015 Act. On 27 October 2022, the Appeal Panel decided that it should make a direction under s 63 of the Tribunal Act and directed that the Registrar forward its decision of 27 October 2022 to the parties to be read in conjunction with its decision of 27 July 2022. The Tribunal, in its decision of 27 October 2022, rejected grounds 1 and 2, and thus decided that it did not need to amend its orders made on 27 July 2022.

The Caretaker appeals from the Appeal Panel’s decision of 27 October 2022. The primary issues on appeal were:

1. Whether the Appeal Panel had the power to make that decision; and

2. Whether the Appeal Panel erred in concluding that the Tribunal had jurisdiction under s 72 of the 2015 Act to make orders in relation to the Caretaker Agreement.

The Court (Meagher JA, Stern JA, Basten AJA) granting leave to appeal and dismissing the appeal, held:

As to issue (i)

By Basten AJA (Meagher JA agreeing):

1. To the extent that the Appeal Panel considered that it was exercising power under s 63 of the Tribunal Act it was in error. The criterion contained in s 63(1) of “an obvious error” was not wide enough to permit the reopening of a decision in order to address substantive issues which had not been previously addressed: [1], [154], [159].

2. The reopening decision made by the Appeal Panel was clearly correct. Such a power falls within the breadth of procedural powers conferred on it under Tribunal Act, s 38. That conclusion flows from the obligation imposed by the guiding principle in s 36(1) to facilitate the just, quick and cheap resolution of the real issues in the proceedings: [1], [90], [160]-[162].

By Stern JA:

1. Section 63 must be construed having regard to the objects of the Tribunal: s 3 of the Tribunal Act and in a manner that seeks to ensure that it facilitates the just, quick and cheap resolution of the real issues: s 36 of the Tribunal Act. That is consistent with the approach taken by Spigelman CJ in Newmont Yandal Operations v The J Aron Corporation & The Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195: [54], [63].

2. The Appeal Panel made an error arising from an accidental omission within s 63(3)(b) and jurisdiction under a rule such as s 63 is available where an order is deliberately made but an error was made by the Court, as is clear from Newmont Yandal, Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642; [1906] HCA 71 and Lambourne v Baker (No 3) [2022] NSWCA 25. The decision to remit the matter to the Tribunal was inconsistent with the Appeal Panel’s observations in its reasons that it was unnecessary to consider any further grounds of appeal within s 63(3)(d). The decision to correct its error could not be properly characterised as the exercise of an independent discretion beyond the ambit of s 63 of the Tribunal Act, construed in its statutory context: [70], [74], [82].

As to issue (ii)

By Basten AJA (Meagher and Stern JJA agreeing):

1. The Appeal Panel was correct to find that the Tribunal had power under s 72 of the 2015 Act to consider the termination application with respect to the Caretaker Agreement. A purposive construction of the provisions in Sch 3 to the 2015 Act requires that Sch 3, cl 15 picks up that limited category of agreements where the caretaker is not entitled to exclusive possession of a lot, while the bulk of caretaker agreements covered by the Strata Schemes Management Act 1996 (NSW) are picked up by Sch 3, cl 3: [1], [137], [185].

2. This Court should be comfortably satisfied that the reasoning in [340] and [341] of Australia City Properties Management Pty Ltd v The Owners – Strata Plan No 65111 (i) was not based upon careful consideration of the detail of the legislative scheme, (ii) was expressed tentatively and was not dispositive, (iii) has not been followed in later cases, and (iv) is, on a more extensive consideration, not correct and should not be followed: [1], [190].

Australia City Properties Management Pty Ltd v The Owners – Strata Plan No 65111 [2021] NSWCA 162, not followed

JUDGMENT

1. MEAGHER JA: I agree with the orders proposed by Stern JA, and do so for the reasons given by Basten AJA.

2. STERN JA: This application for leave to appeal on a question of law under s 83 of Civil and Administrative Tribunal Act 2013 (NSW) (“the Tribunal Act”) and s 75A of the Supreme Court Act 1970 (NSW), and the appeal heard concurrently, relate to a decision of the Appeal Panel (“Appeal Panel”) of the Civil and Administrative Tribunal of NSW (“the Tribunal”) on 27 October 2022 under s 63 of the Tribunal Act (a statutory version of the slip rule): Sunaust Properties Pty Ltd v Owners of Strata Plan 64807 (No 2) [2022] NSWCATAP 335 (“27 October 2022 Decision”). The draft grounds of appeal raise two questions of law: whether the Appeal Panel had power under s 63 of the Tribunal Act to make the decision and whether Appeal Panel erred in concluding that the Tribunal had jurisdiction under s 72 of the Strata Schemes Management Act 2015 (NSW) (“2015 Act”) to make orders in this matter.

3. The context for the application and appeal is a dispute between the Owners Corporation of a strata scheme known as Strata Plan 64807 (“the OC”) and the caretaker of that strata scheme (“the Caretaker”), appointed pursuant to a “caretaker agreement” dated 16 March 2001 (“Caretaker Agreement”). The strata scheme relates to two buildings at 55 Jones Street, Ultimo. The Caretaker Agreement was for a term of ten years but with three options to renew, each for a further five years. The background to the Caretaker Agreement was that, on 27 October 2000, the Caretaker and Meriton, the developer of the buildings, had executed a Deed of Sale of Caretaker Management Rights pursuant to which the Caretaker had paid Meriton $310,000.

4. The OC conceded in its submissions that leave to appeal should be granted. In these circumstances and given the significance of the matters raised in the notice of appeal as to the construction of both s 63 of the Tribunal Act and s 72 and the transitional provisions in the 2015 Act, leave to appeal on both grounds should be granted. However, for the reasons set out below the appeal should be dismissed.

Procedural Background

5. On 30 October 2020, the Caretaker commenced proceedings against the OC in the Supreme Court of NSW seeking orders including for payment of amounts due pursuant to the Caretaker Agreement that had been unpaid since January 2020 and a declaration that the Caretaker Agreement included a term whereby fees due were to be increased annually by 5%. On 11 December 2020, the OC filed a cross-application in those proceedings claiming a set-off including of the fees it claimed the Caretaker had overcharged since 2002 by applying 5% rather than CPI annual increases and of additional fees charged by the Caretaker from 1 April 2009 that the OC said were never agreed. During the hearing before this Court, Senior Counsel for the OC informed the Court that these proceedings remained extant.

The Tribunal Decision

6. By application to the Tribunal dated 24 December 2020, the OC sought orders including an order pursuant to s 72(1)(a) of the 2015 Act terminating the Caretaker Agreement and an order under s 72(1)(d) of the 2015 Act for transfer of lots 107 and 109 of the strata plan (“the Caretaker Lots”) to a replacement building manager. On 17 January 2022 the Tribunal made orders including those sought by the OC under s 72(1)(a) and (d) of the 2015 Act: The Owners – Strata Plan No 64807v Sunaust Properties Pty Ltd [2022] NSWCATCD 20 (“17 January 2022 Decision”).

7. Before the Tribunal the Caretaker submitted that the Tribunal had no jurisdiction to hear and determine the present application because s 72 of the 2015 Act had no application to the Caretaker Agreement as the Caretaker Agreement fell “within a category of agreements excluded from the savings provisions of the 2015 Act”. More particularly, it submitted that cl 15 of Sch 3 of the SSMA 2015 (considered in more detail below) excluded from the application of the 2015 Act caretaker agreements entered into prior to 30 November 2016 where the caretaker was entitled to exclusive possession of a lot or common property in the strata scheme.

8. The Tribunal considered that the question whether s 72 of the 2015 Act applied in the circumstance of this case was the “crucial question on which the outcome of this application depends”: 17 January 2022 Decision at [272]. The Tribunal, having considered the legislative history and transitional provisions in the 2015 Act, and the decision of this Court in Australia City Properties Management Pty Ltd v The Owners – Strata Plan No 65111 [2021] NSWCA 162 (“ACPM”) at [330]–[342], held that it had jurisdiction under s 72 in respect of the Caretaker Agreement: at [304].

The 27 July 2022 Decision

9. On 4 February 2022, the Caretaker lodged a notice of appeal in respect of the Tribunal’s decision. The grounds of appeal relied upon included that:

“1. The Tribunal erred in making orders pursuant to s 72 of the Strata Schemes Management Act 2015 (2015 Act) in relation to the subject Caretakers Agreement, which was entered into no later than 16 March 2001.

2.    The Tribunal thereby erred in purporting to exercise a jurisdiction which it did not have in relation to the subject Caretaker Agreement.

3. The Tribunal erred in taking into account the matters of law and fact which were the subject of Supreme Court of New South Wales proceedings case no. 2020/00311156 commenced prior to the subject Tribunal proceedings contrary to clause 5(7) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (CATA), in particular:

3.1    Whether the annual 5% increase in the Caretaker's fees is valid.

3.2   Whether the charges relating to extra work to be performed by the Caretaker arising from Stage 2 of the complex opening are valid.

3.3    The performance of disputed gardening and mowing duties.

3.4    Having the Caretaker's "personnel sit on" the executive committee.

3.5    Whether there has been a refusal to accept reasonable directions from the present executive committee.

3.6    Whether in August 2020 the Caretaker was "intermeddling" with the OC in the lead up to its Annual General Meeting held on 8 August 2020.”

10. As is immediately apparent, grounds 1 and 2 of the notice of appeal went to the Tribunal’s jurisdiction to make orders under s 72 of the 2015 Act.

11. As to those grounds, the Caretaker’s written submissions reiterated that the Tribunal had no power to make orders under s 72 of the 2015 Act noting that the Tribunal had exercised power “exclusively pursuant to s 72 of the 2015 Act, and not the SSMA 1996” – a reference to the Strata Schemes Management Act 1996 (NSW) (“1996 Act”) which at s 183A conferred a power upon the Tribunal to terminate caretaker agreements that were regulated by that Act. The OC, in response, submitted that the Tribunal did not err and also relied upon the Tribunal’s power to make orders under s 183A of the 1996 Act which the OC contended the Caretaker had “effectively conceded” could have been made by the Tribunal. The OC submitted that “if the Appeal Panel is otherwise satisfied that an order for termination was appropriate, under [the Tribunal Act] s 81(1)(d) the Appeal Panel can substitute for the Decision an order under s 183A(1)(a) of the [1996 Act]”. In written reply submissions, the Caretaker noted that there was no attempt to invoke jurisdiction under s 183A of the 1996 Act.

12. In its decision of 27 July 2022 (Sunaust Properties Pty Ltd v Owners of Strata Plan 64807 Pty Ltd [2022] NSWCATAP 246) (“27 July 2022 Decision”), the Appeal Panel held that, having regard to the concurrent Supreme Court proceedings and to the terms of cl 5(7) of the Tribunal Act, the Tribunal did not have jurisdiction to hear or determine issues central to the application before it, being the entitlement of the Caretaker to impose a 5% increase in its annual fee. Those were matters that were in dispute in the proceedings pending before the Supreme Court. The Appeal Panel therefore upheld ground 3.

13. The Appeal Panel remitted the matter to the Tribunal for reasons set out in their decision at [32]:

“It does not follow from our conclusion concerning cl 5(7) that the tribunal does not have jurisdiction to determine the Respondent’s application, so long as that application does not require determination of issues attracting the engagement of cl 5(7). Accordingly it is not appropriate for us to dismiss the application at first instance. It is a matter for the [OC] to decide whether to withdraw the application or prosecute it again in the Consumer and Commercial Division without reliance on issues before the Supreme Court. The appropriate order that we should make is to remit the application to the Division.”

14. The Appeal Panel found that, in light of their conclusion as to ground 3 it was “not necessary” for them to consider the other grounds of appeal: at [6], and they did not do so.

Correspondence following the 27 July 2022 Decision

15. On the same day, after the 27 July 2022 Decision was published, the solicitors acting for the OC wrote to the Tribunal (copying the Caretaker’s Solicitors) seeking an urgent relisting of the appeal for directions. They stated that they wished to draw to the attention of the Appeal Panel, under s 63 of the Tribunal Act, “an apparent omission to deal with appeal grounds 1 and 2” in the reasons for decision. The letter stated further that, “[i]n our client’s view, a necessary prerequisite to the Tribunal having jurisdiction to deal with the application on remittal is a determination of grounds 1 and 2” of the notice of appeal before it.

16. Following receipt of that correspondence, by order dated 10 August 2022, the Appeal Panel stayed its order for remittal and directed further written submissions from the parties, which were provided. Those submissions were addressed to the question whether the Appeal Panel had jurisdiction under s 63 of the Tribunal Act to reconsider the finding that it was unnecessary to consider grounds of appeal other than ground 3 before it, and to then consider grounds 1 and 2 in a further decision.

The 27 October 2022 Decision

17. In the 27 October 2022 Decision the Appeal Panel described correspondence and submissions since the 27 July 2022 Decision as having “given rise to the need to publish this further decision”: at [1]. At [3]–[5], the Appeal Panel identified that it had “determined the appeal on the basis that clause 5(7) of schedule 4 of the [Tribunal Act] was engaged” and had “stated that having regard to our reasoning concerning the engagement of clause 5 it was not necessary to consider the other grounds of appeal. Accordingly, other grounds including grounds 1 and 2 of the Appellant’s grounds of appeal were not considered.”

18. The key reasoning of the Appeal Panel as to s 63 of the Tribunal Act was as follows:

“42 By not considering grounds 1 and 2 we overlooked making a determination as to whether the Tribunal has no jurisdiction to determine the Respondent’s application even in the absence of issues engaging clause 5(7) because of the possibility that the Caretaker Agreement is not regulated by the Strata Act. This was one of the Appellant’s contentions and, if upheld, the appropriate order would have been to dismiss the Respondent’s application at first instance. In other words, a remittal would not have been appropriate.

43 As the Respondent’s application, at first instance, currently stands, if following the remittal, the application is not reconstituted the appropriate order to be made by the Consumer & Commercial Division would be to dismiss the application. However, if the application is reconstituted so that the issues upon which it relies do not engage clause 5(7) the jurisdictional issue raised by grounds 1 and 2 would remain a live issue. This was essentially the reason behind the Respondent’s application under s 63 of the NCAT Act. The Appellant says in its submissions that it reserves its position with respect to the jurisdictional issue identified by grounds 1 and 2 and will leave that issue in abeyance until final submissions at the final hearing of the reconstituted application.

44 By stating, as we did in paragraph 6 of our decision published 27 July 2022 that because the Tribunal does not have jurisdiction by reason of clause 5(7), it is not necessary to consider the other grounds of appeal, we omitted to consider the effect of permitting the Respondent to reconstitute its application upon the continuing relevance of appeal grounds 1 and 2. In other words, if on the remittal the Respondent proceeds with its application, grounds 1 and 2, if upheld, would have meant that the application was beyond the jurisdiction of the Tribunal. If, on the other hand, grounds 1 and 2 were dismissed the Respondent’s reconstituted application could proceed to final hearing and be determined.

45    The result of omitting to determine grounds 1 and 2 is that there is an inconsistency potentially arising between the decision we have made (the remittal order) and the reasons (namely the statement that it was not necessary to consider grounds 1 and 2).

46    Accordingly, we are of the view that the omission to consider grounds 1 and 2 and the inconsistency between the decision and the reasons means that we should uphold the Respondent’s application and alter the text of our decision of 27 July 2022 by including our views on those two grounds of appeal.”

19. At [47], having referred to the decision in Bruce v Knight (No 3) [2021] NSWCATAP 343, the Appeal Panel added that:

“Although it may be said that there was a deliberate decision by us not to consider grounds 1 and 2, that decision was occasioned by an omission to consider the effect of a remittal order and the coexisting live issue represented by grounds 1 and 2”.

20. The Appeal Panel added at [48] that:

“Our view is consistent with the provisions of s 36 of the NCAT Act which requires the Tribunal to determine issues in a manner which is just, quick and cheap.”

21. On this issue, at [52], the Appeal Panel concluded that:

“[W]e should make a direction as contemplated by s 63 of the Tribunal Act because we are satisfied that there is an obvious error in the written statement of reasons of 27 July 2022. The direction we make is this:

The Registrar is directed to forward to the parties this decision which is to be read in conjunction with our decision of 27 July 2022.”

22. The Appeal Panel, at [53]-[67] then dealt with grounds 1 and 2. At [57] the Appeal Panel concluded that the Caretaker Agreement became regulated by the 1996 Act (incorrectly referred to as the “2002 Act” – a reference to the Strata Schemes Amendment Act 2002 (NSW) (“2002 Amending Act”) which amended the 1996 Act with effect from February 2003) subject to the parameters contained in cl 12(2) of Sch 4 of the 1996 Act.

23. At [59]-[60] the Appeal Panel then considered cl 15 of Sch 3 of the 2015 Act, noting that there were two possible interpretations of cl 15:

1. first, as contended by the Caretaker, that cl 15 brings under 2015 Act “agreements in force immediately before the commencement of [2015 Act] only if all the characteristics identified in (a), (b) and (c) are met (thereby including that the person who is the building manager is not entitled to exclusive possession of a lot or common property).” Under this construction, the Caretaker Agreement would not be regulated by 2015 Act, as the Caretaker Agreement provided for the Caretaker to have exclusive possession of a lot or common property; and

2. second, as contended by the OC and found by the Tribunal at first instance, “that the provisions of clause 15 do not operate to exclude from the [2015 Act] pre-existing caretaker agreements that provide for the caretaker to have possession of a lot or common property” and, in any event, s 30 of the Interpretation Act 1987 (NSW) had the effect that such agreements are regulated by 2015 Act. Hence, the Caretaker Agreement was regulated by 2015 Act.

24. As to these competing positions the Appeal Panel held:

“61 Prior to the Strata Act taking effect in 2016 the Caretaker Agreement in this case was subject to the provisions of the 1996 Act as amended by the 2002 Act. That is the effect of cl 12 the terms of which are set out earlier. However, by cl 12 (2) the provisions in the 2002 Act limiting the term of Caretaker Agreements did not apply to pre-existing agreements. This is the same view as expressed by the Tribunal as recorded in [278] of the Decision.

62 The Strata Act contains two provisions relevant to pre-existing caretaker agreements namely cll 3 and 15. By cl 3(2) clause 3 is to be construed subject to cl 15 to the extent of any inconsistency between the two clauses.

63    Clause 3 provides, in summary, that any act or matter done or omitted to be done under the former Act and having effect immediately before the commencement of the new Act is taken to have been done or omitted to have been done under the new Act. The dispute in these proceeding concerned acts, matters or things done or omitted to be done under the 1996 Act as amended by the 2002 Act and those acts, matters or things are taken to have been done or omitted to have been done under the Strata Act.

64 Clause 15 does not regulate pre-existing caretaker agreements that give exclusive possession of a lot or common property to the caretaker. Clause 15 only regulates pre-existing agreements where the caretaker is not entitled to possession. Pre-existing agreements providing for exclusive possession agreements were regulated by the 1996 Act (as amended by the 2002 Act) and are the subject matter of cl3 rather than cl15. The purpose of cl15 is to address pre-existing caretaker agreements that did not contain a provision entitling a person to exclusive possession of a lot or common property. Such agreements are taken to be building management agreements under the Strata Act.”

25. The Appeal Panel then considered the judgment of this Court in ACPM, finding that its reasons were not inconsistent with the analysis of this Court in ACPM, on the basis that ACPM was concerned with deciding the term of a caretaker agreement for the purpose of loss of bargain damages, and not, as in this case, the Tribunal’s power to terminate a Caretaker Agreement. The Appeal Panel continued that if ACPM was not distinguishable on that basis, s 30 of the Interpretation Act “operates to provide that the accrued rights and obligations between the parties continue following the repeal of the 2002 Amending Act. By cl 3 they are taken to be rights and obligations under the [2015 Act]”.

26. The Appeal Panel thus rejected grounds 1 and 2: at [68]-[69].

27. The orders made by the Tribunal on 27 October 2022 were that:

“1. The Respondent’s application under s 63 is determined on the papers and a hearing is dispensed with.

2. The Respondent’s application under s 63 is upheld and directions are made for the Registrar to publish these reasons to be read in conjunction with the reasons published on 27th July 2022.

3.    Orders 1, 2 and 3 made on 27th July 2022 are affirmed.

4.    If either party seeks costs (either in respect of the appeal or in respect of the first instance proceedings, the party seeking costs must file and serve written submissions within 21 days of the date hereof in support of such application.

5.    Within 21 days thereafter the other party must file and serve written submissions in response to the submissions received.

6.    The submissions of the parties should address the question of whether the Tribunal may determine costs on the papers and make an order dispensing with a further hearing.

7.    The order staying the operation of order 3 made 27th July 2022 pending further order is lifted.”

Draft notice of appeal

28. The draft notice of appeal relies upon the following grounds:

“1.   In relation to the decision below to issue a second decision pursuant to the slip rule provision, the Appeal Panel of the NSW Civil and Administrative Tribunal erred at law in determining that:

1.1   The slip rule provision was enlivened (paragraphs [39], [46]).

1.2   There was a potential inconsistency in its first decision (issued on 27 July 2022) between the remittal order made and the reasons it gave in that first decision; namely, that it was not necessary to consider grounds 1 and 2 (paragraph [45]).

2.   In relation to the decision below to dismiss appeal grounds 1 and 2 of the appeal to the Appeal Panel, the Appeal Panel erred at law in determining that:

2.1   Grounds 1 and 2 of the appeal to the Appeal Panel should be rejected (paragraph [53]).

2.2   The Strata Schemes Management Act 2015 (NSW) (2015 Act) regulates the caretaker agreement between the parties dated March 2001 (paragraph [60]).

2.3   The provisions of cl. 15 of Sch. 3 of the 2015 Act do not operate to exclude from the 2015 Act pre-existing caretaker agreements that provide for caretakers to have possession of a lot or common property (paragraph [60]).

2.4 Section 30 of the Interpretation Act 1987 (NSW) has the effect that such caretaker agreements are regulated by the 2015 Act (paragraph [60]).”

Appeal Ground 1 – that the Appeal Panel erred in its decision under s 63

29. The essence of the Caretaker’s submission on this ground is that, properly construed and having regard to jurisprudence as regards the slip rule as an incident of a court’s inherent jurisdiction or in different statutory emanations, the Appeal Panel did not have power under s 63 of the Tribunal Act in the circumstances of this case effectively to re-open the matter, consider grounds 1 and 2 of the notice of appeal before it, and make the 27 Oct 2022 Decision. This is primarily because, in the 27 July 2022 Decision at [6] (set out above at [13]-[14]), the Appeal Panel had made a deliberate decision not to consider grounds 1 and 2 of the notice of appeal. The Appeal Panel could not, under s 63 of the Tribunal Act, effectively revisit that deliberate decision, exercise an independent discretion, and make a fresh decision on grounds 1 and 2.

30. The Caretaker’s submissions in support of this overarching contention can be distilled into the following propositions.

31. First, the Caretaker relies upon Mutual Shipping Corp of New York v the Bayshore Shipping Co of Monrovia [1985] 1 All ER 520 at 526f-h; [1985] 1 Lloyd’s Rep 189 at 193 (“The Montan”), in particular, the distinction drawn by Lord Donaldson MR between an accidental slip and an “intended decision which the arbitrator or judge later accepts as having been erroneous”. The Caretaker also relies upon the judgment of Lord Donaldson MR in R v Cripps; ex parte Muldoon [1984] 1 QB 686 at 696, in particular, the statement that the exercise of slip rule powers “must be limited to correcting ambiguity in expression of an unambiguous decision”.

32. The Caretaker submits that it has long been established in NSW that “[t]he slip rule has no application to alleged mistakes that are a consequence of a deliberate decision”, relying upon Lawrence v Ciantar (No 2) [2020] NSWCA 186 at [10], which in turn cited Expo Aluminium (NSW) Pty Ltd v Pateman Pty Ltd (No 2) [1991] NSWCA 92. The Caretaker submits that the Appeal Panel made an express and deliberate decision to remit the matter to the Tribunal without considering grounds other than ground 3. In this regard, the Caretaker relies upon the Appeal Panel’s statement in the 27 Oct 2022 Decision at [47].

33. Second, the Caretaker submits that the language of s 63 of the Tribunal Act, in particular the requirement that there be an “obvious error” in the text of a notice of decision or a written statement of the reasons for decision, denotes a narrower and more limited scope of operation, and sets a higher bar for engagement, when compared with Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 36.17 which provides:

If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.

34. The Caretaker submits, thus, that s 63 envisages only minor alterations correcting obvious, immediately apparent errors in the existing text or written reasons and does not include matters that are debatable or “complicated or need[ing] to be divined through various joining of dots and complicated reasoning”: Tcpt, 19 June 2023, p 11(10)-(13). The Caretaker submits that it was not obvious that the Appeal Panel had made an error in the 27 July 2022 Decision and that the Appeal Panel’s finding of inconsistency at [45] of the 27 Oct 2022 Decision was at most “an arguable and contestable view” or a “potential” inconsistency.

35. Third, the Caretaker submits that regard must be had to the examples included in s 63(3) of the Tribunal Act, and none have application here. In particular, the Caretaker submits that the Appeal Panel erred in apparently relying upon s 63(3)(b) and (d), referencing the Appeal Panel’s findings in the 27 October 2022 Decision at [42] that they had “overlooked” making a determination as to whether the Tribunal had jurisdiction to determine the OC’s application, at [44] that they “omitted” to consider the effect of permitting the OC to reconstitute its application upon the continuing relevance of grounds 1 and 2, and at [45] that the result of that omission was that there was an inconsistency between the remittal order and the statement in their reasons that it was not necessary to consider grounds 1 and 2. To similar effect is the Appeal Panel’s explanation that their decision not to consider grounds 1 and 2 was “occasioned by an omission to consider the effect of a remittal order and the coexisting live issue represented by grounds 1 and 2”: at [47]. The Caretaker submits that there was nothing accidental about the Appeal Panel’s decision and that s 63(3)(d) requires an actual, not merely a potential inconsistency such as was found by the Appeal Panel.

36. In any event, the Caretaker submits there was no inconsistency between the stated decision and the stated reasons here as the two were neither incompatible nor contradictory and that the Appeal Panel erred in so finding at [45] of the 27 Oct 2022 Decision. Rather, it is submitted, it is entirely conventional and orthodox for a court to determine a case on one ground without dealing with other grounds that are not necessary for the determination of the case. Thus, there was no error, still less an obvious error enlivening jurisdiction under s 63 of the Tribunal Act, in the Appeal Panel remitting the matter to the Tribunal without considering grounds 1 and 2 before it. The Caretaker relies upon the decision of Kirby J in MZXOT v Minister for Immigration & Citizenship (2008) 233 CLR 601; [2008] HCA 27 at [142]-[143], which I consider further below.

37. The Caretaker also relies upon instances both in the civil and criminal context (relying upon Zhiva Living Dural Pty Ltd v Hornsby Shire Council [2020] NSWCA 180 at [93] and Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344 at [78]-[79]) in which this Court has resolved some but not all grounds before it on the basis that it is unnecessary to resolve the further grounds.

38. Fourth, the Caretaker submits that even under UCPR, r 36.17, it is only where the amendment of a court’s order to give effect to a judge’s intention is beyond controversy that the slip rule can be used, relying upon the judgment of Lockhart J in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 391A; [1995] FCA 943 (“Elyard”). In this regard, the Caretaker submits that, as the orders of the Appeal Panel were not relevantly altered in the 27 Oct 2022 Decision, this threshold was not crossed.

39. Fifth, the Caretaker submits that in the 27 Oct 2022 Decision, the Appeal Panel exercised an independent discretion that was deliberately not exercised in the 27 July 2022 Decision. The Caretaker submits that this was contrary to authority, citing by way of example the decision of this Court in Tonab Investments Pty Ltd v Optima Developments Pty Ltd (2015) 90 NSWLR 268; [2015] NSWCA 287 at [63] (Ward JA (as her Honour then was) Meagher and Leeming JJA agreeing) (“Tonab”), citing Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 453 (McHugh JA) (“Storey & Keers”).

40. Finally, the Caretaker submits that reliance upon s 63 in this case was not necessary to remedy injustice by reason of a problem with the orders and that jurisdiction under a slip rule should be exercised sparingly having regard to the importance of the finality of litigation.

The Tribunal Act

41. As is well established, s 63 must be construed in its legislative context. That relevantly includes the following provisions.

42. The objects of the Tribunal Act, as set out at s 3, include:

(a)     to establish an independent Civil and Administrative Tribunal of New South Wales to provide a single point of access for most tribunal services in the State, and

…

(c)     to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and

(d)     to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and

(e)     to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and

(f)    to ensure that the Tribunal is accountable and has processes that are open and transparent, and

(g)     to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members.

43. The practice and procedure of the Tribunal is set out in Pt 4 of the Tribunal Act. This includes the following:

35   Application of Part

Each of the provisions of this Part is subject to enabling legislation and the procedural rules.

Note—

The Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the practice and procedure to be followed in connection with certain proceedings allocated to the Division for determination. The provisions of the Division Schedule prevail to the extent of any inconsistency with the provisions of this Part. See section 17(3).

Section 4(4) also provides that any provisions of this Act that are expressed to be subject to the procedural rules have effect subject to any exceptions, limitations or other restrictions specified by the procedural rules.

Enabling legislation may also make provision for matters relating to practice and procedure in relation to functions conferred on the Tribunal, including (for example) specifying periods within which applications or appeals under that legislation are to be made.

36   Guiding principle to be applied to practice and procedure

(1)     The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2)     The Tribunal must seek to give effect to the guiding principle when it—

(a)     exercises any power given to it by this Act or the procedural rules, or

(b)     interprets any provision of this Act or the procedural rules.

(3)    Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal—

(a)    a party to proceedings in the Tribunal,

(b)    an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

(4)    In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

(5)     However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

44. Section 38 of the Tribunal Act includes provision that:

(1)     The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.

…

(4)    The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

45. Sections 61 and 62 deal with the date of effect of a Tribunal decision and notification:

61   When decision determining proceedings takes effect

A general decision or a decision determining an external or internal appeal takes effect on the date on which it is given or such later date as may be specified in the decision.

62   Tribunal to give notice of decision and provide written reasons on request

(1)   The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings.

(2)   Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.

(3)   A written statement of reasons for the purposes of this section must set out the following—

(a)   the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b)   the Tribunal’s understanding of the applicable law,

(c)   the reasoning processes that lead the Tribunal to the conclusions it made.

(4)   Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.

46. Section 63 provides:

63   Power to correct errors in decisions of Tribunal

(1)   If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member.

(2)   If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal’s decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct.

(3)   Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where—

(a)   there is an obvious clerical or typographical error in the text of the notice or statement, or

(b)   there is an error arising from an accidental slip or omission, or

(c)   there is a defect of form, or

(d)   there is an inconsistency between the stated decision and the stated reasons.

47. Whilst no hearing is required under s 63, s 50(5) provides that:

“This section does not prevent the Tribunal from holding a hearing even if it is not required”.

Consideration of ground 1

48. It was common ground before this Court that there has been no judicial consideration of s 63 of the Tribunal Act, albeit that the Tribunal has itself considered s 63, for example in Bruce v Knight (No 3), relied upon by the Appeal Panel in the 27 Oct 2022 Decision at [47].

49. In my judgment, for the reasons set out below, the Caretaker’s contention that the Appeal Panel erred in its reliance upon s 63 of the Tribunal Act in the circumstances of this case should be rejected.

50. Contrary to the submission of the Caretaker, having regard to the objects of the Tribunal Act, in particular the object of enabling the Tribunal to resolve the real issues in the proceedings justly, quickly, cheaply and with as little formality as possible, and construing s 63 in a manner that seeks to ensure that it facilitates the just, quick and cheap resolution of the real issues in the proceedings (as required by s 36 of the Tribunal Act), the Appeal Panel did not err in finding that it had power under s 63 to consider grounds 1 and 2 of the notice of appeal before it and to deliver further reasons and, if appropriate, orders. The Appeal Panel, in the 27 July 2022 Decision, had made an error arising from an accidental failure to consider whether or not grounds 1 and 2 of the notice of appeal impacted upon the Tribunal’s jurisdiction to make orders on the OC’s application on remittal. One of the real issues for determination by the Appeal Panel was whether the Tribunal had jurisdiction to make any orders under s 72 of the 2015 Act, and that was plainly a central issue to be determined before remitting the application under s 72 of the 2015 Act to the Tribunal for reconsideration. The Appeal Panel’s error in remitting the matter to the Tribunal without considering the fundamental jurisdictional question raised by grounds 1 and 2 of the notice of appeal before it thus fell within the terms of s 63 of the Tribunal Act, so as to found jurisdiction to consider, and determine, those grounds.

51. In the orders made on 27 October 2022 the Appeal Panel, in effect, directed “a registrar to alter the text” of their earlier written statement of reasons by directing that that earlier statement of reasons be read together with their written statement of reasons delivered on 27 October 2022. That fell within the scope of the power conferred by s 63 of the Tribunal Act.

52. Whilst variation of an order after entry of judgment is an exceptional course (as held, for example, by Spigelman CJ in Newmont Yandal Operations v The J Aron Corporation & The Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195 at [29] (“Newmont Yandal”), such a course was warranted and authorised in the present case.

53. As set out by this Court most recently in Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd [2023] NSWCA 134 at [14] (Bell CJ, Meagher and Kirk JJA agreeing):

“The literal meaning of a statutory provision will not always accord with its legal meaning, which is to be derived from a full consideration of the language of the statute viewed as a whole and the context, general purpose and policy of the statute or a provision within it, to the extent that that is separately discernible: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78]; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320; [1981] HCA 26; Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, [1955] HCA 27;Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 (Sydney Seaplanes) at [26]; Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission (2016) 116 ACSR 473; [2016] NSWCA 298 at [77]. While the legal and the literal meaning of a statute will often coincide, it is the legal meaning of a statutory provision to which this Court must give effect.” (Emphasis in original).

54. Section 63 of the Tribunal Act must therefore be construed having regard to the Tribunal Act as a whole, including the objects in s 3, the guiding principle in s 36 that the Tribunal Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings and the direction in s 38(4) that the Tribunal should act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to legal technicalities or legal forms.

55. Further, as a matter of statutory construction, s 63(3)(b) makes it clear that, for the purposes of s 63(1), an error arising from an accidental slip or omission can be an obvious error enlivening jurisdiction under s 63. As the OC submitted, once that is appreciated, there is little of substance between the language of UCPR, r 36.17 and s 63(1) (read with s 63(3)(b)) of the Tribunal Act).

56. The significance of statutory context in construing a legislative slip rule such as s 63 of the Tribunal Act is apparent from the judgment of this Court in Newmont Yandal.

57. The relevant facts of that case are that there were two sets of proceedings (the 2003 and 2004 Proceedings) arising out of deeds of company arrangement of the creditors of Newmont Yandal Operations Pty Ltd (“Newmont”), prior to which Goldman Sachs had terminated a Master Hedge Agreement with Newmont upon which it claimed that Newmont became liable to pay it US$57M. In the 2003 Proceedings Goldman Sachs challenged the deeds of company arrangement on a number of grounds, including a “formal defect” challenge. In the 2004 Proceedings Goldman Sachs sought a declaration of indebtedness in respect of the hedge transactions. The purpose of the 2004 Proceedings was to determine one of the issues arising in the 2003 Proceedings, namely the formal defect challenge, which if decided in favour of Goldman Sachs would avert the need for a full hearing on many but not all of the issues in the 2003 Proceedings. The primary judge, Austin J, determined separate questions in the 2004 Proceedings (but not in the 2003 Proceedings), following which orders were made on 7 April 2005 in the 2004 Proceedings dismissing the amended cross-claim and entering judgment for Newmont. An appeal against that judgment was dismissed on 15 May 2006.

58. On 4 May 2006 the defendants, including Newmont, served an amended defence in the 2003 Proceedings alleging that the 7 April 2005 orders of Austin J in the 2004 Proceedings gave rise to a res judicata which in substance determined the 2003 Proceedings.

59. In those circumstances, the matter was brought back to Court and White J made orders in the inherent jurisdiction of the Court and under UCPR, r 36.17: J Aron Corporation v Newmont Yandal Operations [2006] NSWSC 849. His Honour vacated the orders made by Austin J on 7 April 2005 and made declarations in answer to the separate questions in the 2004 Proceedings, so as to correct the potential injustice to the plaintiffs if they were shut out from litigating the 2003 Proceedings which was not what Austin J intended. This Court dismissed an appeal against the orders of White J, holding that his Honour’s orders were a proper exercise of power under both UCPR, r 36.17 and the Court’s inherent jurisdiction.

60. The significance of this factual context is that the orders of Austin J, subsequently vacated by White J, were plainly made deliberately. Notwithstanding this, the power in UCPR, 36.17 was enlivened given the unintended consequences of those orders on the 2003 Proceedings. That is, in one sense, the converse of what happened in the present case where the Appeal Panel failed to consider grounds which necessarily would have had consequences for the question whether the proceedings could properly be remitted.

61. Having regard to the terms of s 56 of the Civil Procedure Act 2005 (NSW), which set out the overriding purpose of that Act and of the rules of court (of which UCPR, r 36.17 was one), at [24]-[27] Spigelman CJ held that the Court must both interpret UCPR, r 36.17, and exercise the discretion under UCPR, r 36.17, in a manner that gives effect to the overriding purpose. In that respect the position in NSW “is different to what it has been in the past and to what the position is in other jurisdictions”: at [24]. That “substantive difference” required the Court to treat “prior case law and case law from other jurisdictions with some care”: at [26], and with “caution”: at [117].

62. The Chief Justice found that UCPR, r 36.17 “must extend to the correction of a mistake or error in an order which, or which arguably, resolves an issue that has intentionally not been adjudicated upon” as such a consequence “falls squarely within the concept of an “error arising from an accidental slip or omission””: at [114]. His Honour held that, by reason of s 56 of the Civil Procedure Act, words such as “error” and “correct” in the slip rule should not be given a narrow interpretation: at [116]. As to the contention in that case that there was no “error” within UCPR, r 36.17 where the orders may only “possibly” have the unintended consequence, Spigelman CJ agreed with the analysis of White J that the relevant error was “that the order should provide an occasion for [the argument as to res judicata] to be raised”: at [151]-[153].

63. The analysis of Spigelman CJ as set out above applies equally to the interpretation and application of s 63 of the Tribunal Act, having regard to the guiding principle set out in s 36, which is relevantly similar to s 56 of the Civil Procedure Act. The interpretation of s 63 must therefore give effect to the guiding principle in s 36, albeit that the jurisdiction under s 63 should always be regarded as an exceptional course. The objects of the Tribunal Act, in particular to enable the Tribunal to be accessible and responsive to the needs of all its users and to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, are also consistent with this conclusion.

64. The Chief Justice in Newmont Yandal placed some reliance upon Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642; [1906] HCA 71 (“Ivanhoe v Symonds”), which his Honour described as “a case in which the High Court approved a variation of a final order by reason of the unintended legal consequences of that order”: at [41]. In that case proceedings in negligence had been dismissed and judgment entered for the defendant by the trial judge on the basis that the plaintiff had elected to receive compensation under the Workers’ Compensation Act 1902 (WA) (“the WC Act”) and an appeal against that order was dismissed. Under s 9 of the WC Act the trial judge should, however, have assessed compensation and should also have deducted the costs caused by the plaintiff bringing the action rather than taking proceedings under the statutory regime. No such application had been made to the trial judge at first instance or on appeal. Four days after the appeal was dismissed, the matter was brought back before the trial judge seeking an assessment of compensation under s 9 of the WC Act. The motion was heard and the trial judge made an order under s 9 assessing compensation and deducting costs. On appeal, the Full Court of the Supreme Court of Western Australia held that the judge had no power to make such order after final judgment. The High Court allowed an appeal against that judgment.

65. In Ivanhoe v Symonds Griffith CJ held that as neither the trial judge nor the Full Court in the first proceedings had applied their mind to the duty under s 9 of the WC Act, the judgment in those proceedings could be amended both under the slip rule and under the Court’s inherent jurisdiction: at 654-5.The relevant amendment would have been to limit the judgment to the causes of action set out in the statement of claim with a reservation of the question of assessment of compensation under s 9.

66. Justice Barton held that it was only by reason of the judgment in the Full Court that the preconditions to the duty under s 9 of the WC Act were satisfied: at 662. However, the Court had a statutory duty under s 9 to assess compensation, and that any order drawn up “which, in form, would prevent the performance of that statutory duty must not be allowed to stand in the way of the doing of complete justice between the parties by a Court of final resort”: at 664-5. On that basis his Honour found that on the second appeal the Full Court should have corrected “its own prior order [on the first appeal] if that course became necessary for the purpose of seeing that justice was done”: at 665. Higgins J dissented.

67. In Newmont Yandal Spigelman CJ described Ivanhoe v Symonds as a case “the entire point” of which was that “the matter for which the amendment was sought had not been raised either at first instance or on appeal”: at [144]. Similarly, in the present case, it was not suggested before this Court that either party raised with the Appeal Panel the problem occasioned by remitting the matter to the Tribunal without first determining grounds 1 and 2 of the notice of appeal before it.

68. As recognised by Spigelman CJ in Newmont Yandal, whilst neither the primary judge nor the Full Court in Symonds v Ivanhoe in fact varied the order for entry of judgment in the first trial, the majority in the High Court concluded that either the trial judge or the Full Court should have done so. On that basis the majority in the High Court held that the trial judge’s second decision should stand.

69. More recently, in Lambourne v Baker (No 3) [2022] NSWCA 25, after judgment was delivered and orders made on a notice of motion (which included a request for a stay of the payment of the judgment debt), this Court allowed an application under UCPR, 36.17 (and granted the stay). This was on the basis that the Court had “misapprehended” and “not addressed” the request for a stay in the motion that had been before it on the earlier occasion: at [2], relying upon Newmont Yandal at [24]-[27].

70. The significance of these three decisions is that they clearly show that jurisdiction under a rule such as that in s 63 of the Tribunal Act can be engaged where an order is deliberately and regularly made but by reason of some matter that should have been but was not considered by the Court, or that was misapprehended by the Court, an error was made by the Court. That is precisely the circumstance in the present case, as before remitting the matter to the Tribunal the Appeal Panel should have, but did not, consider whether or not grounds 1 or 2 of the notice of appeal before it meant that on remittal the Tribunal would have had no jurisdiction to consider the OC’s application under s 72 of the 2015 Act.

54. In this regard, Spigelman CJ in Newmont Yandal at [91] held that the identification of “error” had to be by reference to the objective intention of the Court at the time that the original orders were made. By analogy, the question in this case is whether, objectively construed, the reasons for the 27 July 2022 Decision indicate that the Appeal Panel intended to remit the application to the Tribunal irrespective of whether the Tribunal had jurisdiction under s 72 of the 2015 Act having regard to the matters raised in grounds 1 and 2 of the notice of appeal before it. In my judgment, having objectively construed the 27 July 2022 Decision, the Appeal Panel had no such intention. It follows that it made an accidental omission in failing to consider those grounds.

55. That disposes of the Caretaker’s contentions that the Appeal Panel did not have jurisdiction under s 63 of the Tribunal Act by reason of the fact that it made a deliberate decision in the 27 July 2022 Decision not to consider any grounds of appeal beyond ground 3 or that the error was not “accidental”.

56. Further, the test for error is whether the decision or orders did not give effect to the Appeal Panel’s intention (or the intention they would have had if the matter had been brought to their attention). It is not relevant to enquire whether or not the Appeal Panel would have been correct to consider that grounds 1 and 2 had to be determined before an order for remittal could properly be made (see Newmont Yandal at [139]). Thus, it is of no relevance in this case to identify, as the Caretaker did in its submissions, that there are cases in which courts have decided that it is unnecessary to consider some grounds of appeal, or questions, before them. In any event the decision of the Kirby J in MZXOT v Minister for Immigration & Citizenship at [142]-[143], relied upon by the Caretaker, is readily distinguishable. In that case Kirby J, having at [137] found that the plaintiff’s contentions as to an implied power of remittal failed, decided it was not necessary or appropriate to consider the possible existence of a receiving court with jurisdiction and power to receive the matter: at [142]. That second question simply did not arise on the case before the Court. That is a far cry from the circumstances before the Tribunal where grounds 1 and 2 of the notice of appeal before the Appeal Panel went directly to the Tribunal’s jurisdiction on remittal.

57. The reasoning set out above also disposes of the Caretaker’s submission that none of the examples included in s 63(3) of the Tribunal Act have application in this case. For the reasons set out above, the Appeal Panel made an error arising from an accidental omission within s 63(3)(b). Moreover, given that grounds 1 and 2 had the potential consequence that the Tribunal did not have jurisdiction to consider the OC’s application under s 72 of the 2015 Act, the decision to remit the matter to the Tribunal was inconsistent with the Appeal Panel’s observation in its reasons that it was unnecessary to consider any further grounds of appeal within s 63(3)(d).

58. Contrary to the Caretaker’s submission, the Appeal Panel’s error was obvious in the sense that if it had been drawn to the attention of the Appeal Panel the Appeal Panel would “at once” have sought to correct the error and have determined that it was necessary, before making an order for remittal to consider grounds 1 and 2 of the notice of appeal before it (by analogy with the reasoning of Spigelman CJ in Newmont Yandal at [138]). That is so irrespective of whether or not the Caretaker is correct in its submission that it is contestable whether the remittal was inconsistent with grounds 1 and 2 of the notice of appeal before the Appeal Panel. Having regard to the potential inconsistency, and the obvious significance of the question of whether the Tribunal had power to determine the OC’s application under s 72 of the 2015 Act to the appropriateness of remittal, the error here was obvious.

59. As set out above, the Caretaker also relied in its submissions on the decision of Lockhart J in Elyard at 391A. In Elyard, the error enlivening jurisdiction under O 35, r 7(3) of the Federal Court Rules 1979 (Cth) (which relevantly provided that a clerical mistake in a judgment or order, or an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court) was a failure when adjourning the proceedings to a later date to make an order under s 459R of the Corporations Law (as set out in s 82 of the Corporations Act 1989 (Cth)) extending time for determining a winding up application. The Full Court upheld the primary judge’s exercise of discretion under O 35, r 7(3) to vary the Court’s order to include an order extending time. Lockhart J found that the slip rule applies “where the proposed amendment is one upon which no real difference of opinion can exist” but “does not apply where the amendment is a matter of controversy”: at 390-391. At 391, his Honour held that:

“It is well settled that the application of the slip rule is not confined to giving effect to the intention of the judge at the time when the court’s order was made, or judgment given. It extends to the intention which the court would have had, but for the failure that caused the accidental slip or omission.”

77. The proper application of these statements as to the ambit of the slip rule turns upon a careful identification of “the proposed amendment”. As is apparent from the judgment of Spigelman CJ approving the analysis of White J at first instance in Newmont Yandal at [139], the “test is whether the amendment is beyond controversy to give effect to the judge’s intention: not whether it is beyond controversy that the amendment proposed would be a proper order.” Here, the proposed amendment was to the Appeal Panel’s statement in the 27 July 2022 Decision that it was not necessary, in light of their conclusion on ground 3, to consider the other grounds of appeal. Having regard to the objective intention of the Appeal Panel, in my judgment it is beyond controversy that amendment to that statement was needed to give effect to the intention that the Appeal Panel would have had but for their failure to consider whether grounds 1 and 2 potentially had the consequence that the Tribunal would have no jurisdiction on remittal to consider the OC’s application under s 72 of the 2015 Act.

78. The decision of the High Court in Symonds v Ivanhoe is inconsistent with the Caretaker’s contention that the slip rule is unavailable merely because the correct resolution of grounds 1 and 2 of the notice of appeal before the Appeal Panel was a matter upon which there was controversy. An assessment of compensation such as that undertaken in the second decision by the trial judge in Symonds v Ivanhoe would plainly, of itself, be a matter upon which there could be controversy. Yet the majority in the High Court held that jurisdiction could properly have been exercised under the slip rule in that case to correct the erroneous failure to exercise the statutory duty under s 9 of the WC Act.

79. To the extent that the Caretaker submits that there is no “error” because there was nothing more than a “potential” inconsistency between the remittal order and the failure to consider grounds 1 and 2 of the notice of appeal before it, consistent with the reasoning of Spigelman CJ in Newmont Yandal at [151]-[153] (set out above at [62]), that is not to the point. The error is in failing to deal with grounds 1 and 2 of the notice of appeal before the Appeal Panel. Those grounds potentially had the consequence that a remittal would not have been appropriate.

80. The Caretaker’s submission that s 63 envisages only “minor alterations” should also be rejected. That is an impermissible gloss on the language of s 63 when read in context, in particular having regard to s 36 of the Tribunal Act.

81. The Caretaker’s contention that s 63 could not be invoked in the present case as the Appeal Panel exercised an “independent discretion” should also be rejected. The error lay in the Appeal Panel’s failure to consider grounds going to the Tribunal’s jurisdiction under s 72 of the 2015 Act. Correction of that error was not a matter in respect of which there was some independent discretion bringing it beyond the proper ambit of s 63 of the Tribunal Act.

82. Rather, the Tribunal, constituted by the Appeal Panel under s 27(1), was required to exercise the internal appeal jurisdiction of the Tribunal under s 32 as regards an appeal that was properly made under s 80(1) of the Tribunal Act. In doing so, the Appeal Panel had to seek to give effect to the guiding principle that it was to facilitate the just, quick and cheap resolution of the real issues in the proceedings: Tribunal Act, s 36(1) and (2). The Appeal Panel was also to act according to “the substantial merits of the case without regard to technicalities or legal forms”: s 38(4), and to take such measures as were reasonably practicable “to ensure that the parties had a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings”: s 38(5)(c). Construed in that context, the decision to correct its error and to consider grounds 1 and 2 of the notice of appeal before it could not properly be characterised as the exercise of an independent discretion beyond the ambit of s 63 of the Tribunal Act. Rather, it was for the Appeal Panel to complete its task of determining the real issues on the appeal before it consistently with the requirements of the Tribunal Act.

83. In support of its submission the Caretaker relied upon the following passage from the judgment of McHugh JA in Storey & Keers at 453 that the:

“rationale of the slip rule also requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist: cf Brew v Whitlock (No 3) [1968] VR 504 (at 506). In general the test of whether a mistake or omission is accidental is that applied by Lord Herschell in Hatton v Harris [1892] AC 547 (at 558) if the matter had been drawn to the court’s attention would the correction at once have been made?”

84. In the passage set out above, McHugh JA should not be understood as suggesting that the slip rule cannot be invoked where, as here, after the relevant error has been corrected there is a need to consider competing submissions as to the appropriate outcome. Any such principle would be inconsistent with the majority in the High Court in Symonds v Ivanhoe, where having corrected the erroneous failure in the Court to consider s 9 of the WC Act, the Court went on to assess compensation and deduct costs.

85. It would also be inconsistent with the decision of this Court in Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2 where, after judgment was delivered on an appeal and orders made, an application was made for orders varying the Court’s judgment relying upon UCPR, r 36.17. The basis for the application was the Court’s failure to deal with two of the prayers for relief in the notice of appeal in circumstances where the appellant’s counsel had overlooked those matters at the hearing of the appeal. The application was opposed. This Court allowed the application in part, gave substantive consideration to the prayers for relief that had previously been overlooked and ultimately made further orders. Thus, relief was available under UCPR, r 36.17 on account of the erroneous failure to consider the additional prayers for relief notwithstanding that there were differences of opinion as to whether the relief sought in those prayers for relief should ultimately be granted.

86. Similarly, in Roads & Traffic Authority (NSW) v Palmer (No 2) [2005] NSWCA 140 at [26], Giles JA, Spigelman CJ and Handley JA agreeing, found that the slip rule was “available” where the application relied upon a failure by the Court to consider making a Bullock order. The Court then considered the merits of the application, ultimately concluding that no such order should be made.

87. Further, in the context of the Tribunal Act, an inflexible requirement that relief could not be granted under s 63 where the grant of that relief would result in the Tribunal having to consider a contested issue would, in my judgment, be inconsistent with the guiding principle in s 36 that the Tribunal Act, including s 63, should be applied “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”.

88. As set out above, the Caretaker also relied upon the decision of this Court in Tonab. In that case after judgment the magistrate, purportedly under UCPR, r 36.17, had transferred proceedings from the Small Claims Division to the General Division of the Local Court with effect from the date of the original orders. The magistrate had made an order for indemnity costs which was beyond the jurisdiction of the Small Claims Division. Thus, the purpose of the later order purporting to transfer the proceedings to the General Division was to confer jurisdiction to make an order for indemnity costs. The circumstances of that case are far removed from those of the present. In Tonab, as noted by Ward JA (as her Honour then was) at [63], both parties accepted the correctness of the principle that “the slip rule is not applicable where it involves the exercise of an independent discretion not exercised at the time in question.” Thus, the question for the Court was whether the magistrate had intended to exercise the discretion to transfer at the time when the order for indemnity costs was made: see [69]-[70].

89. Finally, the Caretaker’s submission that reliance upon s 63 in this case was not necessary to remedy injustice focusses upon the wrong test. The Appeal Panel had power to correct their decision once the criteria in s 63 were satisfied. Jurisdiction under s 63 does not depend upon whether it is necessary to exercise the power in order to remedy injustice. Further, the Caretaker in the notice of appeal challenges the Appeal Panel’s conclusion that the power in s 63 was enlivened (at ground 1.1) but does not challenge the decision to exercise discretion once that power was enlivened. Thus, to the extent that the interests of justice may be relevant to the exercise of discretion, that was not a matter within the grounds of appeal.

90. In any event, even if the Tribunal did not have power under s 63 in the circumstances of this case, for the reasons given by Basten AJA, I would agree that the Appeal Panel was nonetheless correct to reopen its earlier decision.

Ground 2 – does the Tribunal have power to determine the OC’s application under s 72 of the 2015 Act

91. The submission of the Caretaker on appeal ground 2 was that s 72 of the 2015 Act does not enable the Tribunal to make any orders in respect of the Caretaker Agreement because that agreement was entered into before 30 November 2016 when the 2015 Act came into effect and because the transitional provisions in Sch 3 to the 2015 Act did not bring the agreement within the auspices of the 2015 Act. This, in turn, was because the Caretaker Agreement provided for the Caretaker to have exclusive possession of two lots in the strata scheme.

92. Thus, the Caretaker submitted, the Caretaker Agreement did not fall within the ambit of cl 15 of Sch 3 which deemed an earlier agreement to be “building manager agreement for the purposes of the Act” where the person appointed under the agreement was not entitled to exclusive possession of a lot or common property in the strata scheme. Further, the Caretaker submitted, no other clause in Sch 3 operated to enable an order to be made under s 72 of the 2015 Act. In particular, the more general cl 3 could not have that effect having regard to the language used and to the judgment of Bathurst CJ, Payne and McCallum JJA agreeing, in ACPM at [330]-[349].

93. It is common ground that the Caretaker Agreement provides for the Caretaker to have a right of exclusive possession of the Caretaker Lots in the strata scheme by virtue of clause 5 and item 3 of Schedule 1 to the Agreement.

Legislative background

94. Given the nature of the issue, it is necessary to traverse the legislative background to the 2015 Act in some detail.

95. The Caretaker Agreement was made on 16 March 2001. As at that date, the 1996 Act provided that an owners corporation “has the functions conferred or imposed on it by or under this or any other Act”: s 12. In the Dictionary to the 1996 Act, “functions” were defined to include “a power, authority or duty”. Under s 8(2) an owners corporation for a strata scheme had “the principal responsibility for the management of the scheme”. Section 61(1) provided that “[a]n owners corporation has the control, management and administration of the common property of the strata scheme for the benefit of the owners”.

96. Section 62 relevantly included the following:

(1)   An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

(2)   An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.

97. In March 2001 the 1996 Act also included s 13(1) which provided that:

An owners corporation may employ such persons as it thinks fit to assist it in the exercise of any of its functions.

98. Significant amendments were made to the 1996 Act by the 2002 Amending Act which commenced on 10 February 2003. Of particular significance were amendments to regulate “caretaker agreements”, there having been no such provisions in the 1996 Act prior to the 2002 Amending Act. Thus, ss 40A–40C were introduced relevantly in the following terms:

40A   Who is a caretaker?

(1)   A caretaker is a person who is entitled to exclusive possession (whether or not jointly with another person or other persons) of a lot or common property and assists in exercising any one or more of the following functions of the owners corporation for the strata scheme concerned:

(a)   managing common property,

(b)   controlling the use of common property by persons other than the owners and occupiers of lots,

(c)   maintaining and repairing common property.

…

40B   How is a caretaker appointed?

(1)   A caretaker is required to be appointed by an instrument in writing (a caretaker agreement) executed before or after the strata scheme commenced by the caretaker and:

(a)   by the original owner, if executed before the strata scheme commenced, or

(b)    under the authority of a resolution passed at a general meeting of the owners corporation of the strata scheme concerned, if executed after the strata scheme commenced.

(2)   Unless it expires or otherwise ceases to have effect earlier, a caretaker agreement (including any additional term under any option to renew it) expires:

(a)    at the conclusion of the first annual general meeting of the owners corporation, if the agreement was executed by the original owner, or

(b)   when 10 years have expired after it commenced to authorise the caretaker to act under it, in any other case.

…

(4)   An owners corporation may terminate a caretaker agreement in accordance with its terms, and may approve a transfer of the functions of a caretaker, if authorised by a resolution at a general meeting of the owners corporation.

40C   With which functions of an owners corporation can a caretaker assist?

(1)   A caretaker may, in accordance with the caretaker agreement appointing the caretaker, assist in exercising one or more of the functions of the owners corporation of managing and controlling the use of common property (otherwise than by the owners or occupiers of lots) and of maintaining and repairing common property.

(2)   However, the owners corporation may continue to exercise all or any of those functions, subject to the caretaker agreement.

8.   The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid [in Ridge v Baldwin^[8] ], reconsider the whole matter afresh?”

5. (2002) 209 CLR 597; [2002] HCA 11.

6. Some footnotes omitted; see also at [52] (Gaudron and Gummow JJ); [63] (McHugh J); [151] (Hayne J) and [162]-[163] (Callinan J).

7. [1989] 2 SCR 848.

8. [1964] AC 40 at 79, set out in Bhardwaj at [5].

162. The conclusion that the power to reopen the earlier decision was not only available, but was also the appropriate course in the present case, flows from the obligation imposed by the guiding principle in s 36(1) to facilitate the just, quick and cheap resolution of the real issues in the proceedings, applied to the exercise of the power to reopen. It is true that in the present case the issue of jurisdiction was squarely raised by the applicant in its appeal to the Appeal Panel, and that it was the owners corporation which sought to have the question of jurisdiction resolved. However, as explained above, had the Appeal Panel failed to resolve that question, it would simply have delayed, at greater expense to the parties and the Tribunal, the final resolution of an issue which was undoubtedly central to the application before the Tribunal and was then unresolved.

163. Accordingly, although not based on the power under s 63, the reopening decision made by the Appeal Panel was clearly correct. Reliance on s 63 of the Tribunal Act was an immaterial error which warranted a grant of leave to appeal, but not upholding ground 1. The applicant’s contention to the contrary must be rejected.

Jurisdiction to terminate Caretaker Agreement

164. The Appeal Panel and the member correctly held that the Tribunal had jurisdiction, subject to Sch 4, cl 5(7) of the Tribunal Act, to make an order terminating the Caretaker Agreement.

165. The jurisdictional issue was, in simple terms, whether the Caretaker Agreement, which was subject to the regulatory regime of the Strata Schemes Management Act 1996 (NSW), pursuant to a transitional provision that commenced on 10 February 2003, continued to be subject to the statutory scheme regulating such agreements after the 1996 Act was replaced by the 2015 Act, which took place on 30 November 2016.

166. Until amended by the Strata Schemes Amendment Act 2002 (NSW) (“2002 Amendment Act”), the 1996 Act did not regulate the caretaker agreements or the management of strata schemes. The mischief addressed by the 2002 Amendment Act was succinctly stated in the second reading speech delivered on 30 October 2002: ^[9]

“The main concern that has arisen over the appointment of caretaker managers by developers is that an owners corporation may be tied to a 25-year contract with little opportunity to challenge its terms. The developer has in effect decided, before there are individual owners within the scheme, what is in the best interests of the owners for the next 25 years. However, it is the developer who has received the financial benefit, as the sale of caretaker management rights can be quite a lucrative transaction. The bill provides that no future caretaker management contract will be able to exceed a total period of 10 years. Contracts already in existence, which may have periods in excess of 10 years to go, will be allowed to run their course….”

9. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 October 2002, at 6180.

167. The 2002 Amendment Act defined a “caretaker” as a person “who is entitled to exclusive possession… of a lot or common property” and who assists in carrying out management functions with respect to the common property: s 40A(1). In accordance with the Minister’s statement in the second reading speech, a caretaker agreement was required to be an instrument in writing appointing a caretaker and was to expire ten years after it commenced: s 40B(1) and (2). The Amendment Act conferred powers on the Tribunal, including a power to terminate a caretaker agreement where the caretaker “has refused or failed to perform the agreement or has performed it unsatisfactorily” and the charges payable by the owners corporation are “unfair”: s 183A(1)(a), (2)(a) and (b). There was a further ground of termination, namely that the agreement was “harsh, oppressive, unconscionable or unreasonable”: s 183A(2)(c). Those provisions operated prospectively from the date on which the Amendment Act took effect, namely 10 February 2003. However, a further amendment was made to Sch 4 of the 1996 Act, providing that an agreement which was in force immediately before the commencement of the new provisions that, “if entered into after that commencement, would be a caretaker agreement is taken to be a caretaker agreement appointing a caretaker”: Sch 4, cl 12(1). There were three qualifications to that provision, namely that the caretaker was not required to be a person entitled to exclusive possession of a lot (as would have been required under s 40A(1)), and was not subject to the ten year expiration provision in s 40B(2), and was not subject to termination on the harsh, oppressive, unconscionable or unreasonable ground in s 183A(c), to the extent that the ground related to “the period for which the agreement is in force”: cl 12(2).

168. The 1996 Act was repealed by the 2015 Act, s 275(a). The new provisions referred to a “building manager” rather than a caretaker: s 66. The term “building manager” was now defined by reference to the same functions of managing common property, but unlike s 40A(1) of the 1996 Act, did not require that the person be entitled to exclusive possession of a lot. The power conferred on the Tribunal to terminate an agreement for the appointment of a building manager is to be found in s 72(1) of the 2015 Act. Such an order may be made on a number of grounds, including those identified in s 183A of the 1996 Act, together with some further grounds.

169. As with the 2002 Amendment Act, the new provisions applied prospectively: the critical question in the present case was whether the transitional provisions in Sch 3 of the 2015 Act provided for the applicant’s Caretaker Agreement to be subject to the new regime. There were two relevant transitional provisions. The first was cl 3 which was in the following terms:

3   General savings

(1)   Any act, matter or thing done or omitted to be done under a provision of the former Act and having any force or effect immediately before the commencement of a provision of this Act, that replaces that provision is, on that commencement, taken to have been done or omitted to be done under the provisions of this Act.

(2)   This clause does not apply:

(a)   to the extent that its application is inconsistent with any other provision of this Schedule or a provision of a regulation made under this Schedule, or

(b)   to the extent that its application would be inappropriate in a particular case.

170. It will be recalled that s 13(1) of the 1996 Act conferred a power on an owners corporation to employ persons to assist it in the exercise of any functions, the Caretaker Agreement was entered into in 2001 by an exercise of that power by the owners corporation. The effect of the 2002 Amendment Act was not to vary that agreement, but rather to deem it to be a caretaker agreement for the purposes of the 1996 Act. Thus, the entry into the agreement was an act done under the 1996 Act which had force and effect immediately before the commencement of s 67 providing for the appointment of a building manager for a strata scheme. Accordingly, the appointment of the applicant was from the date of commencement of the 2015 Act, taken to have been done under s 67 of the 2015 Act. From that time, the agreement was subject to the powers of the Tribunal under s 72 of the 2015 Act, including the power of termination on one of the grounds identified in that provision. However, that operation of cl 3 was subject to a requirement that its application was not “inconsistent with” any other provision of Sch 3: cl 3(2)(a). The applicant contended that it was inconsistent with cl 15, which picked up some caretaker agreements but not others. Clause 15 read as follows:

15   Caretakers and building managers

(1)   An agreement in force immediately before the commencement of this clause is taken to be a building manager agreement for the purposes of this Act, despite any of the provisions of the agreement, if—

(a) the agreement provides for the appointment of a person to carry out any of the functions specified in section 66 (1) in relation to the owners corporation for a strata scheme, and

(b)   the primary purpose of the agreement is to provide for that appointment and related matters, and

(c)   the person is not entitled to exclusive possession of a lot or common property in the strata scheme.

(2)   Any such building manager agreement expires 10 years after the commencement of this clause unless the terms of the agreement provide that it expires on an earlier day or the agreement is terminated on an earlier day.

(3)   A reference in any instrument to a caretaker in relation to a strata scheme is taken to be a reference to a building manager in relation to that scheme.

171. The applicant submitted that the effect of cl 15(1) was to pick up a caretaker agreement only where the caretaker was “not entitled to exclusive possession of a lot”. The applicant was entitled to the exclusive possession of a lot and the Caretaker Agreement was therefore not picked up as a building manager agreement for the purposes of the 2015 Act. There was an implied exclusion of such caretaker agreements with the consequence that the general savings provided in cl 3(1) should not operate to override that exclusion. To the extent that cl 3(1) had such an effect, its application was inconsistent with cl 15 and therefore cl 3 did not apply. ^[10]

     10. The circulatory created by the disapplication of “[t]his clause” by subcl (2) may be disregarded: it should be read as if it said “clause 3(1) does not apply…”.

172. Whilst this construction is clearly available on a textual consideration of cl 15, it depends upon two assumptions. The first is that the criteria specified in cl 15(1) are intended to be exclusive, rather than facultative. It also depends upon the term “inconsistent” in cl 3(2)(a) including an inconsistency based upon a restrictive implication, namely the exclusion from the new regime of all pre-existing agreements which do not fall within cl 15.

173. The appropriate way to resolve this constructional choice is to test the alternatives against the mandate in s 33 of the Interpretation Act 1987 (NSW) to prefer a construction that would promote the purpose or object underlying the Act to one which would not.

174. The 2015 Act, like the 1996 Act, establishes, relevantly for present purposes, a regulatory regime in relation to caretaker or building manager agreements. Where a statutory regime is changed, the legislature broadly has three alternative approaches open to it in considering how to accommodate pre-existing agreements. The first is to make no provision in the new legislation but to rely upon the default provision in s 30 of the Interpretation Act. The second is to maintain the earlier regulatory scheme with respect to agreements entered into before the new schemes comes into operation. In a case such as the present, that would entail maintaining the institutional structure by which disputes are resolved. The third option is to deem the existing agreements to be made under the new provisions, with the result that they will be subject to the same regulatory scheme as new agreements.

175. Broadly speaking, both the 2002 Amendment Act and the 2015 Act adopted the third approach. One reason for doing so is to permit a collaborated approach to existing agreements which may not comply with the new regime. As has been noted, that is precisely what cl 12 in Sch 4 to the 2002 Amendment Act did in protecting the time periods which were common in earlier agreements, but which were precluded under the amendments. A similar degree of flexibility is built into cl 3 of Sch 3 to the 2015 Act, providing that the new provisions will not apply to previous Acts where the application would be “inappropriate in a particular case”. Significantly, no such flexibility is provided for in cl 15.

176. Returning to the first option, s 30 of the Interpretation Act relevantly provides:

30   Effect of amendment or repeal of Acts and statutory rules

(1)   The amendment or repeal of an Act or statutory rule does not:

…

(c)   affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or

…

and any … remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.

(2)   Without limiting the effect of subsection (1), the amendment or repeal of an Act or statutory rule does not affect:

…

(b)   any right, privilege, obligation or liability saved by the operation of the Act or statutory rule, or

…

(d)   the operation of any savings or transitional provision contained in the Act or statutory rule.

177. The effect of s 30(2)(d) is to give priority to savings or transitional provisions in the particular statute. That would accord with the general principle that a specific, later statute will supersede or impliedly repeal applicable provisions in an earlier general statute. Given that the 2015 Act contained a broadly operating general savings provision in Sch 3, cl 3, at least in the first instance, reliance should not be placed on s 30 of the Interpretation Act. As will be seen shortly, a purposive construction to Sch 3 to the 2015 Act will resolve the constructional choice identified above without need to resort to s 30, which may be put to one side.

178. With respect to the second and third options available to the legislature, it is clear that it has adopted the third, that is it has provided for the transition of pre-existing agreements to the new regime and, at least with respect to caretaker agreements, has made no provision for the continuing operation of the 1996 Act. It follows that the owners corporation was correct to assume that it had no right to make an application to the Tribunal under s 183A of the 1996 Act. It also follows that the power of the Tribunal to consider the application by the owners corporation to terminate its agreement with the applicant must turn on its agreement being subject to the 2015 Act as a result of the operation of the transitional provisions.

179. Two propositions flow from this analysis. The first is that the clear intention of the legislature was to maintain the regulatory scheme that had operated with respect to caretaker agreements under the 1996 Act but to tighten that regime in certain respects, including by ensuring that agreements would, subject to the possible leniency which might be accorded to early agreements, be limited to ongoing periods of ten years operation. Secondly, there is nothing in the 2015 Act which would support an implication that the bulk of such earlier agreements, or even particular categories of them, would no longer be regulated where they had previously been regulated.

180. However, if the Caretaker Agreement is not regulated by the 2015 Act, the bulk of such pre-existing agreements will also fall outside the scheme of the 2015 Act, with very significant implications for large numbers of lot holders in a wide range of strata schemes.

181. Why is that so? The answer lies in the fact that a caretaker under the 1996 Act as amended in 2002, was a person who was entitled to exclusive possession of a lot or common property. A caretaker agreement was an agreement with such a person: s 40A of the 1996 Act. It follows that no caretaker agreement regulated under the 1996 Act will be subject to the 2015 Act if the only agreements which qualify are those referred to in cl 15(1), because all of those pre-existing agreements will be excluded by par (c). Furthermore, some, and possibly the bulk, of such agreements entered into prior to 10 February 2003, will also be excluded because, like the caretaker agreement, they confer a right of exclusive possession on the caretaker with respect to one or more lots in the strata scheme. (That such agreements were commonplace, or at least that they gave rise to the very problems which the legislature was seeking to regulate, is demonstrated by their frequency in the matters coming before the Tribunal and the Court, and by clear intention of the 2002 Amendment Act to include such agreements.)

182. In fact, the only category of agreements which will be covered by cl 15(1) (where the caretaker is not entitled to exclusive possession of a lot) will be those which were specifically provided for in cl 12 of Sch 4 to the 2002 Amendment Act which expressly dealt with such agreements in subcl (2)(a). The inference is, therefore, that cl 15 was inserted for precisely the same purpose, namely to ensure that what must, by November 2016, have been a relatively small proportion of caretaker agreements, are included within the scheme of the 2015 Act. The bulk of the pre-existing caretaker agreements, for the reasons identified above, will comfortably fall within the language of the general savings provision in cl 3(1).

183. It is possible that this outcome could be avoided on the basis that s 72 applies to a caretaker agreement entered into before the commencement of the 2015 Act. That approach depends on the fact that s 72(1), dealing with the powers of the Tribunal, does not use the defined term “building manager agreements”, but rather refers to “an agreement for the appointment of a … building manager”. On that view, cl 15 is not necessary for the operation of s 72, but only to engage other provisions of the 2015 Act which use the term “building manager agreement”, which is defined in s 67(2) and used to deal with a number of other matters, including the date of expiry of the agreement (s 68(1)) and the transfer and sharing of functions under s 69 and s 70.

184. However, that approach not only involves discounting the reference to “building manager agreements” in the heading to s 72 (on the basis that the heading to a section is not part of the Act^[11] ), but also disregarding the reference in the table in Pt 12 which identifies the power of the Tribunal under s 72, to be exercised on the application of an owners corporation, as being “[t]o terminate … building manager agreement”. Further, the effect would be to remove from any former caretaker agreement not caught by Sch 3, cl 15 other benefits, including the power of reappointment and termination in s 68(2) and (3), the power of transfer of functions under s 69 and the right of the owners corporation to exercise certain functions in conjunction with a building manager under s 70. That approach must also rely on Sch 3, cl 3 to pick up such agreements as predated the commencement of the 2015 Act.

     11. Interpretation Act, s 35(2)(a).

185. A preferable approach relies on a purposive construction of the provisions in Sch 3 to the 2015 Act. That requires that cl 15 picks up that limited category of agreements where the caretaker is not entitled to exclusive possession of a lot, while the bulk of caretaker agreements covered by the 1996 Act are picked up by cl 3. It therefore follows that both the Tribunal member and the Appeal Panel were correct in their conclusions that the Tribunal had power to consider the termination application with respect to the applicant’s Caretaker Agreement, subject to dealing with the overlap between that application and the proceedings in the Supreme Court.

Authority to the contrary?

186. It remains to consider whether this approach is precluded by authority which is inconsistent with the reasoning set out above. In the Tribunal, before the Appeal Panel and before this Court, the applicant resisted the approach set out above on the basis that the issue of construction had been determined in its favour in the earlier decision of this Court in Australia City Properties Management Pty Ltd v The Owners – Strata Plan No 65111 (ACPM). ^[12] In ACPM the operation of the transitional provisions arose only as a consequential issue in relation to relief. ACPM established that the owners corporation had wrongfully terminated its caretaker agreement. That gave rise to an issue as to the amount of damages to which it was entitled, which in turn depended upon the likely expiration date of the agreement. The agreement had been varied on two occasions, in 2010 (after the 2002 Amendment Act came into operation) and in 2015, before the commencement of the 2015 Act. Bathurst CJ identified the issue as it arose in the following terms:

“337   The 2015 Deed presents a greater difficulty. ACPM’s position on whether it was a building manager agreement was ambivalent. For the purpose of contending that the Strata Committee had no authority to terminate the Caretaker Agreement absent the approval of a general meeting, it contended it was a building manager agreement, whilst for the purpose of determining the effect of the 2015 Deed it asserted it was not.

338 In my view, the Caretaker Agreement does not fall within the provisions of cl 15 of the transitional provisions in the 2015 Act, as ACPM was entitled to exclusive possession of the Caretaker Lots. It remains to be considered whether the general savings provision in cl 3 or the provisions of s 30 of the Interpretation Act 1987 (NSW) preserves the rights and obligations of the parties under the 2015 Deed and the effect of s 40B(2) of the 1996 Act on them.”

12. [2021] NSWCA 162 (Bathurst CJ, Payne and McCallum JJA agreeing).

187. The context thus outlined explains why the issue was dealt with in largely conclusory terms, in effect in a single paragraph out of some 360 paragraphs of the full judgment. The Chief Justice reasoned as follows:

“339 The primary judge concluded that the general savings provision in cl 3(1) applied such that the appointment of the Caretaker under the Caretaker Agreement was taken to have been done under s 67(2) of the 2015 Act, and the Caretaker Agreement was thus a building manager agreement for the purpose of the 2015 Act.

340 I have some difficulty with this approach. The savings provisions in cl 3 do not apply to the extent they are inconsistent with any other provision of the Schedule. Clause 15 deals with agreements entered into before the commencement of the 2015 Act and excludes from circumstances in which such an earlier agreement is taken to be a building manager agreement an agreement that provides the Caretaker is entitled to exclusive possession of a lot. The application of the general savings provision in cl 3 in the manner suggested by the primary judge thus is inconsistent with cl 15.

341 However, the savings provision in s 30 of the Interpretation Act provides that the repeal of an Act does not affect the prior operation of the Act or any privilege, right, obligation or liability acquired under it. Thus, to the extent the 1996 Act as amended operated to limit the effect of the 2010 and 2015 Deeds, the limitation remained in force. The operation of the Interpretation Act in that fashion is not in my opinion inconsistent with the savings and transitional provisions in the 2015 Act: ….

342   Thus, the question of the effect of the 2015 Deed is to be determined having regard to the 1996 legislation.”

188. It is true that the reasoning at [340] and [341] is inconsistent with the reasoning set out above rejecting reliance on s 30 of the Interpretation Act, and relying on Sch 3, cl 3 of the 2015 Act. However, it may be noted that the issue was dealt with in equally cursory terms by the trial judge in ACPM, Darke J, in the following passage:^[13]

“66 The Caretaker submitted that as it was entitled to exclusive possession of a lot in the strata scheme, cl 15(1) was not satisfied in respect of the Agreement, and the Agreement was thus not a building management agreement for the purposes of the 2015 Act. The Owners Corporation submitted that the Agreement, in the form it existed upon the commencement of the 2015 Act, fell within the general savings provision of cl 3(1). It was submitted that if the second Deed of Variation of March 2010 was valid, it took effect as an instrument of appointment under s 40B(1) of the 1996 Act. I think that is correct (and in my view the same can be said about the April 2015 Deed of Variation). It was submitted, on that basis, that the appointment was something done under a provision of the 1996 Act that had force or effect immediately before the commencement of a provision of the 2015 Act that replaced that provision (that is, s 67(2)). It followed that on the commencement of the 2015 Act, the appointment was taken to have been done under s 67(2) of the 2015 Act. The Agreement was thus a building manager agreement for the purposes of the 2015 Act.

67 I accept these submissions of the Owners Corporation. I also accept its further submissions in support to the effect that cl 15 of Schedule 3, which applies to only a limited class of agreement, was not intended to exhaustively define the pre-existing caretaker agreements that would be taken to be building manager agreements under the new Act.”

13. Australia City Properties Management Pty Ltd v The Owners – Strata Plan No 65111 [2020] NSWSC 1505

189. While Darke J’s conclusion accords with that identified in these reasons, the limited consideration explains why, on appeal, this Court treated the issue, which did not affect the outcome, equally briefly. In substance, the conclusion in ACPM turned on the contractual obligations approved by the owners corporation in a 2015 Deed: the rejection of the reasoning of the primary judge with respect to the operation of the transitional provisions in the 2015 Act did not result in a different outcome. ^[14] That the reasoning was not dispositive may explain the diffidence with which the point of departure from the trial judge was identified (“I have some difficulty with this approach”).

     14. See ACPM at [348].

190. The fact that the reasoning in ACPM was undertaken for the purpose of determining which provisions as to the term of the agreement applied, rather than whether the Tribunal had power to terminate the agreement, that was not an appropriate basis for the Tribunal member or the Appeal Panel to disregard the conclusions set out above. However, it is open to this Court to conclude that a different view may be taken as to the operation of the transitional provisions in the 2015 Act. In my view, this Court should be comfortably satisfied that the reasoning in [340] and [341] of ACPM (i) was not based upon careful consideration of the detail of the legislative scheme, (ii) was expressed tentatively and was not dispositive, (iii) has not been followed in later cases, and (iv) is, on a more extensive consideration, not correct, and should not be followed.

Conclusion

191. For these reasons, the orders proposed by Stern JA should be made.

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Endnotes

Amendments

16 August 2023 - Three typographical errors amended at [165], [167] and [181]

Decision last updated: 16 August 2023