District Court New South Wales

• Medium Neutral Citation: The Owners - Strata Plan 21702 v Krimbogiannis [2013] NSWDC 72
• Hearing dates: 20 & 21 March 2013, and subsequent written submissions
• Decision date: 28 May 2013
• Jurisdiction: Civil
• Before: Levy SC DCJ

Decision

1.Application for leave to appeal matters of fact, and mixed questions of fact and law arising from the decision of the Consumer, Trader and Tenancy Tribunal on 28 March 2012, is refused;

2.The appeal from the decision of the Consumer, Trader and Tenancy Tribunal given on 28 March 2012, is dismissed;

3.The appellant is to pay the respondents' costs on the ordinary basis unless otherwise ordered;

4.Liberty to apply on 7 days notice if further orders are required.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: ADMINISTRATIVE LAW - Appeal from Consumer, Trader and Tenancy Tribunal - whether appealable questions have been raised - nature of the appeal as of right or by leave - Divs 1 and 2 of Pt 5 of Crimes (Appeal and Review) Act 2001 - decision of the CTTT denied the owners corporation access to a tenanted commercial allotment to enable removal of unauthorised structural work carried out during a prior tenancy - remedy pursued against the tenants of the allotment rather than against the owner
• Legislation Cited: Civil Procedure Act 2005; Consumer, Trader and Tenancy Tribunal Act 2001, s 28, s 35; Crimes (Appeal and Review) Act 2001, Div 1 and Div 2 of Pt 5, s 52, s 53, s 56, s 59; Strata Schemes Management Act 1996, s 62, s 65, s 65A, s 138, s 145, s 172, s 200; Uniform Civil Procedure Rules 2005, r 50.16
• Cases Cited: Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1; Hood v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 55; Maritime Authority of NSW v Nikolai Rofe [2012] NSWSC 5; Ridis v Strata Plan 10308 [2005] NSWCA 246; (2005) 63 NSWLR 449; Rinbac Pty Ltd v The Owners - Strata Plan 64972 [2010] NSWSC 656; (2010) NSWLR 601 at 605; Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1472; TNT Skypack International (Aust) Pty Ltd v FCT (1988) 82 ALR 175
• Category: Principal judgment
• Parties: The Owners - Strata Plan No. 2172 (Appellant); Arthur Krimbogiannis, Andrew Krimbogiannis, Connie Krimbogiannis (Respondents)
• Representation: Mr R Kaye SC with Ms P Koroknay (Appellant); Mr D Knoll (Respondents); David Le Page (Appellant); Konstan Lawyers (Respondents)
• File Number(s): 2012/126027
• Publication restriction: None

Decision under appeal

• Date of Decision: 2012-03-28 00:00:00
• Before: Consumer, Trader and Tenancy Tribunal; Senior Member G Meadows
• File Number(s): SCS 10/54103

Judgment

Table of Contents

Summons	[1] - [8]
Central issue in the appeal	[9] - [18]
Factual background	[19] - [30]
The decision of the CTTT under present appeal	[31] - [33]
The present appeal	[34] - [37]
Nature of the appeal to the District Court in this case	[38] - [51]
Underlying appeal from the Adjudicator to the CTTT	[52] - [54]
Submissions of the parties	[55] - [56]
Consideration	[57] - [75]
The central issue	[60] - [69]
Ground 1 - was the work "required"	[70]
Ground 2 - alleged s 172 obligations	[71]
Grounds 6, 7, and 8 - contended construction of s 62(2)	[72]
Grounds 16 - refusal of CTTT to admit evidence	[73]
Grounds 3, 4, 5, 9, 10, 12-15 - facts and mixed questions	[74]
Ground 11 - claimed duty under s 61(1) of the SSM Act	[75]
Disposition	[76]
Costs	[77]
Orders	[78]

Summons

1 The plaintiff appellant, The Owners - Strata Plan No. 21072, an owners corporation under the Strata Schemes Management Act 1996 ["the SSM Act"], filed the present summons seeking to appeal a decision of Senior Member Meadows given on 28 March 2012 in the Consumer, Trader and Tenancy Tribunal ["CTTT"], which determined an appeal from an Adjudicator concerning an underlying strata management dispute between the present parties, pursuant to the provisions of the SSM Act.

2 In dismissing the appeal by the owners corporation, the CTTT denied the owners corporation an order for access to Lot 6 of premises known as The Connaught, situated at 185-211 Liverpool Street, Sydney. The owners corporation sought such access for the purpose of removing longstanding but unauthorised works comprising an installed sliding glass door, and in its place, it proposed restoring a former glazed panel in the wall on the eastern perimeter of the building.

3 In the underlying CTTT proceedings, and on appeal in this court, the respondents, Arthur, Andrew and Connie Krimbogiannis, opposed the relief sought by the owners corporation.

4 The strata scheme in question has over two hundred residential units. Below those units are a number of office units, and below that level, on the lower ground floor, which is accessible to the street, there are six commercial lots, including Lot 6.

5 Since 1 September 2006, the respondents have been the lessees of Lot 6 where the offending sliding glass door is located. The respondents operate a café and take away food business from that location. The respondents were not responsible for the installation of the contentious unauthorised alterations to the wall. Those alterations had been made during the term of a previous tenancy of the premises, before the respondents had obtained their present lease from the lessor and owner of the Lot, Fallshaw Investments Pty Ltd.

6 In opposing the summons, the respondents asserted that in these proceedings, the owners corporation has sought to invoke an incorrect legal procedure for the relief it seeks. The respondents do not say that the owners corporation cannot ultimately, in certain justified circumstances, if a requirement exists to do so, obtain the requested access and rectification orders sought. Instead, they argue that such orders, if available, should be obtained against the owner of Lot 6, and not as against them as tenants of that owner.

7 The distinction has obvious business implications for the respondents and their landlord, however, those business implications are not relevant to these proceedings. Despite having been in the past invited to do so by the respondents, the owners corporation declined to join the owner of Lot 6 to the proceedings. The owners corporation argued that it was immaterial whether the tenant or the owner was pursued for the access it claimed.

8 In approaching the issues for decision I wish to express my appreciation of the way in which the legal representatives streamlined the evidence and the issues, and to counsel for their careful assistance with their submissions, which I have drawn upon in preparing my reasons for judgment.

Central issue in the appeal

9 The parties were at issue as to the identification of the central issue in the appeal. The owners corporation argued that the central issue was whether it was entitled to an order for access to Lot 6 to restore the common property into the state it was intended to operate by replacing the sliding glass door with a fixed plate glass window, as that installation was in breach of s 65A of the SSM Act.

10 In contrast the respondents saw the central issue as the proper construction of s 62 of the SSM Act. The owners corporation argued that by setting the issue in the way they had, the respondents were seeking to get up a "straw man" argument for convenient demolition.

11 I do not accept that characterisation for two principal reasons.

12 First, the owners corporation must act according to powers vested in it. Such powers in this instance must be "required" to be exercised, and cannot be exercised arbitrarily or capriciously, where no problem or defect or defective condition, exists. The "requirement" provision is itself determined by the presence or absence of a special resolution of a general meeting of the owners corporation specifically authorising the corporation to take the particular action proposed: s 65A of the SSM Act. That special resolution authorising access to the tenants' premises was absent in this case.

13 Secondly, it seems to me that the terms of s 62 of the SSM Act, must be met before the owners corporation can act in the manner sought. In my view, this then raises the central issue to be the proper construction of s 62 of the SSM Act on the issue of good and serviceable repair of the common property.

14 I therefore consider the central legal issue in the appeal to be the proper construction of s 62 of the SSM Act. The terms of that section are as follows:

"62 What are the duties of an owners corporation to maintain and repair property?

(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.

(3) This clause does not apply to a particular item of property if the owners corporation determines by special resolution that:

(a) it is inappropriate to maintain, renew, replace or repair the property, and

(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme."

15 On that issue, the owners corporation took the position that it had a statutory obligation to enter the Lot occupied by the respondents in order to close off the sliding glass door by which deliveries are made to the premises, and to replace that door with a fixed portion of glass wall to match adjoining fixed glass structures. The duty to maintain common property is not in doubt, the authority to enter an individual allotment without establishing the essential precondition is the matter at issue.

16 In contrast, the respondents took the position that there was no reason or requirement for the course proposed by the owners corporation, particularly as there had been no special resolution of a general meeting of the owners corporation authorising such a course to be taken. The respondents argued that since the existing sliding glass door was working well, and was therefore in a good and serviceable condition, it did not need to be repaired, renewed or replaced, and certainly not by a solid glass wall.

17 In short, in the underlying appeal from the Adjudicator, the respondents argued that the sliding glass door was in situ when they acquired the lease of the premises on 1 September 2006, and they consequently wished to keep the premises in the state in which they have leased them, as it suits their business to do so. Furthermore, the respondents maintained that they make use of the sliding door in contention exclusively for goods delivered to the premises, and for access and egress by staff in the course of their work. The respondents also make the point that the wall into which the existing sliding glass door is constructed, is not a structural wall, but is also made of glass.

18 In determining the underlying appeal from the decision of the Adjudicator, the CTTT agreed with the position taken by the respondents. The respondents seek to maintain that position in the present appeal brought by the owners corporation to this court.

Factual background

19 On 11 July 1984, Strata Plan 21702 was registered. At some stage after registration, and it appears, after the acquisition of Lot 6 of the premises by Fallshaw Investments Pty Ltd, a sliding glass door was installed as part of the perimeter of Lot 6 and forming part of the common property of the premises.

20 The sliding glass door in question slides within an area within the confines of the shop area leased by the respondents, without protrusion beyond the perimeter of Lot 6. The shop comprising Lot 6 is not large, and it has an overall floor area of about 24 square metres.

21 The sliding glass door was installed in substitution of a portion of glazed wall that formed part of the original structure in that location. The evidence as to who carried out that modification, which was not authorised by the owners corporation, remains unclear. There is no dispute that the unauthorised work was carried out during a previous tenancy of the allotment, and not by the present respondents.

22 The general appearance of the sliding glass door in contention is shown in the following two photographs that were in evidence. Photograph 1 shows a clear glazed closed sliding door within an aluminium frame to the centre left of the photograph.

Photograph 1

23 Photograph 2 shows the same area but from a different angle, and it shows the sliding door in the opened position to the centre right of the photograph.

Photograph 2

24 Over time, the continuing existence of the sliding glass door has remained a source of some irritation to constituents of the governing body of the owners corporation. For their own reasons, the respondents have resisted repeated requests by the owners corporation for access to the Lot leased by the respondents for the purpose of removal of the unauthorised sliding glass door, and for its replacement with a fixed glass panel.

25 As a result of that unresolved dispute, in the period 2008-2011, various attempts were made by the owners corporation to have the sliding glass door removed and replaced with a glass wall panel in accordance with the original design, construction and appearance of that area of the premises. In those events, the dispute was eventually referred to an Adjudicator appointed under the SSM Act.

26 On 7 March 2008, the owners corporation obtained findings and orders from Adjudicator Smith, which if they had been enforced within the time allowed, would have facilitated the outcome it was seeking. For reasons that have not, and need not be identified, explained or otherwise developed in these proceedings, the owners corporation appears to have taken no active steps to enforce those orders, and in accordance with the legislative scheme under which those orders were made, after the passage of 2 years, on 7 March 2010, those orders lapsed, and had no further effect: s 172 of the SSM Act.

27 Notwithstanding the lapse of those orders, the owners corporation maintained its desire to have the sliding glass door removed, and for the former glazed wall to be restored.

28 Subsequently, on 2 August 2010, in a further Adjudication appointed under the SSM Act before Adjudicator Rosser, the owners corporation sought orders pursuant s 138 and s 145 of the Act seeking to enforce its claimed access and restoration rights with regard to the sliding glass door/ fixed glass wall panel issue.

29 On 3 November 2010, Adjudicator Rosser dismissed that application on the factual basis that he was not satisfied that the sliding glass door in question was one which the owners corporation had an obligation under s 62 of the Act, to replace. The owners corporation was dissatisfied with that decision and appealed the decision to the CTTT.

30 It was common ground both in the adjudication, and in the appeal in the CTTT, that the sliding glass door in question was being used as a delivery door for goods into the shop, and was in place when the respondents took the assignment of the lease. Similarly, there was no issue that the door in question was constructed within the line of the remainder of the glass wall in that area of the premises, and that it slides within the premises without protrusion.

The decision of the CTTT under present appeal

31 On 28 March 2012, in the CTTT, Senior Member Meadows dismissed an appeal from the decision of Adjudicator Rosser. That dismissal has led to the present proceedings.

32 In the CTTT, Senior Member Meadows found that the decision made by Adjudicator Rosser on the disputed sliding door, in which Adjudicator Rosser dismissed an application by the owner's corporation for access to the allotment for restoration purposes pursuant to s 138 and s 145 of the SSM Act, had not been shown to have been erroneous.

33 The key portions of the decision of the CTTT in that regard were in the following terms:

"FINDINGS

13. In my opinion, an order which has no force or effect because of the effect of section 172 of the Act cannot found any obligation or right of the Owners Corporation to carry out the work the subject of the original order. I reject the submission that section 63(5) continues to apply to such an order. No support was provided for that submission and it appears misconceived - I am not surprised it was not specifically maintained in the final submissions of the appellant. As I understood the oral submissions of the appellant, they did not disagree with the finding of Adjudicator Rosser that the "Adjudicator Smith order" had lapsed after the two year period. There was reference to a later variation which extended the time to complete the works until March 2011 but there is no record of such an extension before me. The time to complete order 5 (that is, in reference to the replacement of the original window) was extended by an order dated 20 March 2008 as follows:

"On 19 March 2008, the following orders were made by the Adjudicator:

Clarification pursuant to Section 107(2)

The time for compliance with orders 1, 2 & 3 is 7 April 2008,

The time for compliance with orders 4 & 5 is 21 April 2008.

..."

[Further comments were made not relevant to this appeal.]

In my opinion this does not affect the outcome and I agree with Adjudicator Rosser's decision in this regard.

14. There were lengthy submissions in relation to the section 145 application. In my opinion, the Adjudicator was in error in finding that the sliding door was neither a fixture nor a fitting, However, I agree with the respondent's submission that in relation to this appeal, it does not matter in that the outcome is not affected. However the door is characterized, there can be no doubt that it is part of the common property and that therefore section 62 applies. For the sake of completeness, I find that the door is a fixture and that it has become part of the realty. (Indeed, in my opinion that is the effect of the Adjudicator's statement that the door is part of the "fabric of the building") The real point is, that there is no evidence that the door is not in good repair, is not working properly, represents a potential hazard or any other problem with the door. I do not accept that the suggested issue in relation to the Development Application is relevant to this appeal. If there is such a problem, that is a matter for the local certifying authority, not this Tribunal.

15. I am unable to accept the submission of the appellant that there is a "straightforward obligation to "replace" in circumstances where the original structure has been altered:" I have carefully read the relevant pages of the decision in Margiz and I can find no support for that proposition at all. There is simply no discussion in relation to an original structure having been altered.

16. For these reasons, the appeal is dismissed."

The present appeal

34 The owners corporation has aptly described the present appeal as being one which appeals the order of the CTTT dismissing an appeal to that tribunal.

35 Essentially, Senior Member Meadows decided the proceedings on the evidence before him in the context of the previous adjudication order and determination by Adjudicator Rosser against the historical background of the dispute between the parties, and in the light of the powers conferred by the SSM Act and by the CTTT Act, which included a wide discretion as to whether or not to admit further evidence: s 28 - but not sub-section (5), and s 35 of the CTTT Act.

36 In its amended form, the summons filed by the owners corporation raised a total of 16 grounds of appeal. All grounds but for Ground 2 were pressed. On their face, some grounds clearly related to purely factual matters, and others raised mixed questions of fact and law.

37 The parties were in dispute as to whether the summons raised any purely legal grounds, or whether the nature of the appeal required this. For ease of reference, rather than summarising the lengthy grounds of appeal contained in the amended summons, the text of the grounds set out in the summons is annexed as an Appendix to these reasons.

Nature of the Appeal to the District Court in this case

38 The parties were at issue as to the correct nature of the appeal to this Court from the decision of the CTTT. The owners corporation contended that the correct basis was s 52 and s 53 of the Crimes (Appeal and Review) Act 2001 ["the CAR Act"]. In contrast, the respondents argued that the correct basis of jurisdiction was s 56 of the CAR Act.

39 Appeals on questions of fact, and mixed questions of fact and law, for which leave to appeal is required, are governed by s 52 and s 53 of the CAR Act. Appeals on questions of law alone are as of right without leave, and are governed by s 56 of the CAR Act.

40 This appeal arises in the context where the matter at issue has been the subject of a statutory adjudication, an appeal from that adjudication, and now an appeal from that appeal.

41 Public policy dictates that there must at some point be an end to litigation between litigants on the same facts and issues. Rights of appeal are circumscribed and limited by such considerations. In my view, applying those principles, by the time litigation has reached the point of being characterised as an appeal from an appeal from an appeal, the ultimate appeal to this Court should be limited to questions of law alone.

42 I therefore conclude that the owners corporation should not have leave to appeal to seek to re-litigate a broad range of factual, and mixed fact and law questions. This appeal is therefore limited to matters that may be raised in an appeal as of right, namely, questions of law alone: s 56 of the CAR Act.

43 In that regard, the question of law is the subject matter of the appeal itself: TNT Skypack International (Aust) Pty Ltd v FCT (1988) 82 ALR 175, at page 178. An appeal of that kind involves an extremely limited basis: Hood v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 55, at [1].

44 An appeal as of right invoking s 56 of the CAR Act, appealing from a decision of the CTTT in a strata titles matter, lies to this Court in the same way as it would lie under Div 2 of Pt 5 of the CAR Act if the order in question were a determination of the Local Court, made at the time the order took effect, in the exercise of summary jurisdiction on a court attendance notice: s 200 of the SSM Act.

45 The owners corporation does not need leave where it has an appeal as of right on a ground involving a question of law alone: s 56 of the CAR Act. In determining an appeal to which s 56 of that Act applies, the power of this Court is limited to setting aside the order made in the underlying proceedings, or making such other order as is thought fit in the circumstances, or dismissing the appeal: s 59(2) of the CAR Act.

46 In accordance with the preceding reasons, an appeal on a question of fact alone, or on a mixed question of fact and law, invoking s 52 and s 53 of the CAR Act and Div 1 of Part 5 of that Act, is not available to the owners corporation in this instance.

47 Although the owners corporation argued that the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 applied to this appeal, thereby justifying a rehearing pursuant to UCPR r 50.16(1) and (6), consistent with my stated findings, I do not accept that submission: Rinbac Pty Ltd v The Owners - Strata Plan 64972 [2010] NSWSC 656; (2010) NSWLR 601 at 605, at [13], per Brereton J.

48 For completeness I shall refer to the submissions filed in support of the appeal where the owners corporation took the following position:

"This matter raises the question of whether an Owners Corporation, which has an absolute duty to maintain and to repair the common property and a duty to administer the strata scheme, is entitled to an order for access to a lot so that it can restore the common property to the state in which it was intended to operate, by replacing a sliding glass door which was installed without the approval of the Owners Corporation in breach of s 65A of the Strata Schemes Management Act 1996("SSMA") in place of a fixed plate glass window: ..."

49 The owners corporation argued that in order to evaluate that question it is necessary to examine the nature of the appeal from the Adjudicator to the CTTT. In my view, given the absence of a special resolution of a general meeting of the owners corporation, consideration of powers under s 65A of the SSM Act does not arise.

50 The respondents submitted that examining the underlying appeal from the Adjudicator is unnecessary in this instance because this appeal is concerned with questions of law alone, and not facts or mixed questions of fact and law, as distinct from an appeal brought to the CTTT pursuant to Div 1 of Pt 5 of the CAR Act, which permits such considerations. In contrast, the present appeal is concerned with and limited by Div 2 of that Part.

51 I have accepted that submission and therefore conclude that in this appeal, it is unnecessary to examine the nature of the appeal from the Adjudicator to the CTTT because the present appeal from the decision of the CTTT is only concerned with errors on legal questions alone: Maritime Authority of NSW v Nikolai Rofe [2012] NSWSC 5, per Brereton J, at [12]-[13].

Underlying appeal from the Adjudicator to the CTTT

52 There is no issue that in general, as was submitted by the owners corporation, the nature of an "an appeal" varies according to the statutory context. "Appeal" is used to describe many different forms of proceedings; appeals on questions of law, appeals by way of rehearing, appeals by rehearing de novo, appeals which on examination can be seen to be an exercise of original jurisdiction: Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, per Hayne J at page 97, par [290]. The particular meaning of the term "appeal" is dependent upon the context, and from the history of the legislation under which it arises, the surrounding circumstances: Per McHugh J, in Eastman, at page 40, par [130].

53 However, in this appeal, the statutory context of the present appeal is clear in that s 200 of the SSM Act and s 56 of the CAR Act, limits the ambit of the appeal to questions of law alone.

54 Therefore, I find that it is unnecessary to review the material that was before Adjudicator Rosser for the purposes of delving into the nature of the appeal to the CTTT where the Adjudicator had beforehand dealt with factual matters.

Submissions of the parties

55 At first instance, and on appeal, each party presented extensive written submissions, including primary submissions and submissions in reply, which were in each case supplemented by oral argument. In these reasons I do not propose to rehearse and canvass each submission so made. Instead, consistent with the findings I have made, I will address the submissions I consider to be critical to the outcome of the proceedings.

56 In that regard, the respondents submitted that only Grounds 1, 2, 6, 7 and 8 of the appeal by the owners corporation could be construed as being limited to questions of law alone, and as a consequence, it was further submitted that the other grounds of appeal raised by the owners corporation were not competent because they went beyond a question of law alone.

Consideration

57 In my view, an examination of the grounds of appeal numbered 1 to 16, excluding Ground 2, which is no longer pressed, compels the view that the respondents submission concerning the competency of the majority of the grounds of appeal must be accepted where no question of law alone has been raised: Maritime Authority of NSW v Nikolai Rofe [2012] NSWSC 5, at [12] to [13].

58 This finding applies to Grounds 4 and 5, and also to Grounds 9, 10, 12 to 15. Ground 16 requires a separate consideration.

59 In the paragraphs that follow, after dealing with the stated central issue, I set out my consideration of the remaining grounds of appeal, namely Grounds 1, 3, 6, 7, 8, 11 and 16.

The central issue

60 I have accepted that the central issue in the appeal is the proper construction of s 62 of the SSM Act, in the context of and the obligation of an owners corporation to maintain and repair property. This has already been the subject of authoritative consideration: Ridis v Strata Plan 10308 [2005] NSWCA 246; (2005) 63 NSWLR 449, per Hodgson JA at [2], Tobias JA at [42], and McColl JA at [84]-[91].

61 In that consideration, the construction on s 62 to the effect that an owners corporation was required to inspect common property from time to time and to replace fixtures not broken or patently defective, or not compliant with current safety standards, was specifically rejected: Ridis, per McColl JA at [92]-[93].

62 In undertaking the analysis which led to that conclusion, McColl JA noted that it was s 65 of the SSM Act that gave an owners corporation the power to enter property to carry out work, and that it is a prerequisite to that power being exercised, that the work was "required to be carried out": Ridis, per McColl JA, at [107].

63 In Ridis, Hodgson JA, who together with McColl JA, formed the majority, stated that the obligations on an owners corporation under s 62 of the SSM Act for the maintenance of common property in a good and serviceable state of repair, were not without qualification: Ridis, per Hodgson JA, at [3].

64 In the present case, there is no evidence that the sliding glass door in contention was in a condition other than in a good and serviceable state of repair. It was not broken nor was it a safety risk, and it was not patently defective. In those circumstances, I accept the respondents' submission that the owners corporation is seeking a construction of s 62 of the SSM Act that was specifically rejected by the majority in Ridis. In those circumstances, it is not open to this court to accept the construction the owners corporation now contends should be accepted in this appeal, given the binding nature of the decision in Ridis.

65 In the absence of evidence that the works proposed by the owners corporation were "required" to the area of the sliding door, on account maintenance of a state of good repair and serviceability, s 62 of the SSM Act does not assist the owners corporation. This must be so where the evidence is that the door is functional, and there is no evidence of a defective state of repair or that it was not in a good and serviceable state of repair. If there is no evidence of the asserted defective state of repair, the contrary position seems unarguable: Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1472, per Brereton J, at [4].

66 Accordingly, for the owners corporation to succeed in this appeal, it is not sufficient for that corporation to rely upon it's desire to do the work of replacing a sliding glass door with a segment of glass wall. The owners corporation must demonstrate that such work is required to be carried out. This has not been shown to be the case, especially where the door has not been shown to have deteriorated, to have been damaged, or that it does not function. On the contrary, the only evidence on the issue is that the door works adequately. There is no evidence that the door requires any kind of interventional maintenance.

67 Absent evidence to the contrary of those matters, s 62 of the SSM Act should not be construed as enabling the owners corporation to replace the sliding glass door with something different, such as a glass wall, without evidence that this is required, notwithstanding that the door is an unauthorised structure. The fact that a structure is unauthorised does not necessarily mean that it is not in a good and serviceable condition.

68 On those considerations, and on an application of the identified principles cited from the decision in Ridis, the dispute over the identification of what is the central issue of appeal should be determined in favour of the respondents, and not the owners corporation.

69 For completeness, I shall address the specific grounds of appeal that remained arguable as questions of law alone, and deal with the other matters more generally, and briefly.

Ground 1 - was the work "required"

70 The alleged failure of the CTTT to make a finding that work was required to be carried out on the door cannot be sustained without specific evidence of such a requirement, through a currently applicable special resolution of a general meeting of the owners corporation, specifically authorising such action. Ground 1 should therefore not be upheld.

Ground 2 - s 172 of the SSM Act, obligation to carry out the work

71 Ground 2, which sought a construction on s 172 of the SSM Act to base an obligation to carry out the works in contention based on the lapsed first adjudication orders, was no longer pressed by the owners corporation. In any event, this ground had no basis for success without evidence of the need or requirement for the work to be carried out, given the lapse of the previous order.

Grounds 6, 7 and 8 - contended construction of s 62(2) of the SSM Act

72 The contended constructions of s 62 of the SSM Act so as to construe the terms "renew" to "restoring common property" (Ground 6); "replace" to "restoring common property to its former state so that part of the common property can operate as it was intended to operate" (Ground 7); and "properly maintain" to "include keeping the common property in a state which enables it to serve the purpose for which it was intended to exist" (Ground 8), are contrary to the cited authority which I have followed: Ridis.

Ground 16 - refusal to admit evidence on appeal to the CTTT

73 The scope in this appeal for arguing that there was a refusal to admit evidence in the appeal to the CTTT from the Adjudicator is circumscribed by the nature of the appeal being limited to a question of law alone. To the extent that a refusal to admit evidence could be seen to be an arguable legal question in this case, as distinct from the exercise of a wide discretion conferred by the CTTT Act, which I consider to be the case here, the correction of such an error required that the owners corporation sought prerogative relief in the Supreme Court. This Court has no jurisdiction to grant such relief in a case such as this. Therefore, Ground 16 should be rejected.

Grounds 3, 4, 5, 9, 10, 12 to 15 - fact and mixed questions of law

74 Grounds 3, 4, 5, 9, 10, 12, 13, 14 and 15 raised either purely factual matters, or mixed questions of fact and law. Those matters cannot give rise to a jurisdiction in this Court to lay the foundation for an appeal where the grounds for an appeal must be shown to be a question of law alone: s 200 of the SSM Act, and s 56 of the CAR Act.

 

Ground 11 - alleged failure to consider duty under s 61(1) of the SSM Act

 

75 Ground 11 raises, for the first time, a claimed failure on the part of the CTTT, to find the owners corporation had a duty, pursuant to s 61(1) of the SSM Act, to rectify unauthorised works to the common property. The respondents point out, correctly, that this ground raises a matter not previously argued before the Adjudicator, and not argued by the owners corporation in the appeal to the CTTT from the decision of the Adjudicator, which is why the point was not decided by the CTTT. In those circumstances, procedural fairness requires that Ground 11 be excluded from the consideration in this appeal.

Disposition

76 The appellants have not demonstrated any reasonable basis upon which the appeal should be allowed. The appeal should therefore be dismissed.

Costs

77 As the appellant owners corporation has not succeeded in its appeal, the appellant should pay the respondents' costs of the appeal on the ordinary basis, unless a basis can be shown for some other costs order to be made.

Orders

78 I make the following orders:

(1) Application for leave to appeal matters of fact, and mixed questions of fact and law arising from the decision of the Consumer, Trader and Tenancy Tribunal on 28 March 2012, is refused;

(2) The appeal from the decision of the Consumer, Trader and Tenancy Tribunal given on 28 March 2012, is dismissed;

(3) The appellant is to pay the respondents' costs of the summons on the ordinary basis, unless a basis can be shown for some other costs order to be made;

(4) Liberty to apply on 7 days notice if further orders are required.

 

 

APPENDIX

1   In failing to find that for the purposes of s.63(5) of the Strata Schemes Management Act 1996, "work required to be carried out" includes both "work that is required to be carried out" and "work that has been required to be carried out"; alternatively, includes both "work required to be carried out" and "work required to have been carried out".

2   In finding that an order which has no force or effect because of the effect of s.172 of the Strata Schemes Management Act 1996 cannot found any obligation or right of the Owners Corporation to carry out work the subject of the original order.

3   In finding that there was no evidence that the door "represents a potential hazard".

4   In finding that there was no evidence of "any other problem with the door".

5   In finding that the unlawful and unauthorised installation of the door was not a "problem with the door".

6   In failing to find that "renew" in s.62(2) of the Strata Schemes Management Act 1996 includes restoring common property to its former state so that the common property of which the door forms part can operate as it was intended to operate.

7   In failing to find that "replace" in s.62(2) of the Strata Schemes Management Act 1996 includes restoring common property to its former state so that that part of the common property can operate as it was intended to operate.

8   In failing to find that "properly maintain" in s.62(1) of the Strata Schemes Management Act 1996 includes keeping the common property in a state which enables it to serve the purpose for which it was intended to exist.

96   In failing to find that the unlawful and unauthorised installation of the door gave rise to a responsibility on the part of the Owners Corporation to restore the common property to lawful condition.

107   In finding that the Owners Corporation has no responsibility to rectify the unlawful and unauthorised condition of an item of common property unless the common property is in a state of disrepair.

118   In failing to find that the Owners Corporation has a duty to undertake work to rectify the unlawful and unauthorised condition of the common property under s.61(1) of the Strata Schemes Management AcM996.

129   In according any weight to the Defendants' submission "that there is no adverse impact on the Appellant by dismissing the appeal whereas replacing the original window (sic) would amount to unreasonable interference with the lot", having directed in the course of the hearing that those matters were not relevant to the determination of the appeal.

1310   In finding that the physical condition of the door was "the real point".

14   In refusing to admit evidence as to the grounds for the Plaintiff's contention that the installation of the door was unauthorised and illegal and accordingly required replacement, on the basis that such evidence appeared "to take this appeal outside of the original adjudication decision."

15   Having refused to admit such evidence, in finding that the door did not represent a potential hazard, and that there was no evidence of any other problem with the door.

16   By refusing to admit such evidence, thereby preventing any possibility of a finding that the door required replacement on the grounds that its installation was unauthorised and illegal.

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Decision last updated: 04 June 2013