Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396

1. [1]

   By a Summons filed in Court on 20 February 2025 (“the Summons”), Hua Nan Trading Pty Ltd (“Hua Nan” or “the plaintiff”) sought to appeal a decision of the New South Wales Civil and Administrative Tribunal (“NCAT” or “the Tribunal”) Appeal Panel (“the Appeal Panel”) made on 3 October 2024 (Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2024] NSWCATAP 192 (“the Decision”)) (“the Appeal”).

2. [2]

   Mr Jack Mei (“Mr Mei”), the sole director of Hua Nan, was self-represented and was assisted by an interpreter on the day of the hearing.

FACTUAL BACKGROUND

1. [3]

   The plaintiff owned a unit in Strata Plan No 32396 in Lidcombe, Sydney. In February 2020, heavy rain fell and water entered the plaintiff’s unit. The plaintiff sought to claim damages from the defendant under s 106 of the Strata Schemes Management Act 2015 (NSW) (“the SSM Act”) because of the defendant's failure to maintain and repair common property, namely, a down pipe, which caused the stock located in the plaintiff’s unit to get wet and damaged during the rainfall.

2. [4]

   In February 2022, the plaintiff made an application with NCAT for damages pursuant to s 106(5) of the SSM Act (“February 2022 strata application”). However, that application was not accepted by the NCAT registry as the requirement to undergo mediation pursuant to s 227 of the SSM Act had not been satisfied.

3. [5]

   Counsel for the defendant, Mr N Simone, submitted that the February 2022 strata application was dismissed by NCAT. However, an email communication of 4 February 2022 from Mr L Harvey (Deputy Divisional Registrar at NCAT) to the plaintiff, communicated that the “application [had] not been accepted and the file [had] been closed”.

4. [6]

   Mediation between the parties subsequently occurred on 22 April 2022 and was unsuccessful.

5. [7]

   The plaintiff lodged a second application with NCAT in April 2022 (“April 2022 strata application”), which was accepted by the NCAT registry, and the matter was set down for hearing on 9 November 2022. As I will discuss later, it was the core submission of the plaintiff that the April 2022 strata application was not a fresh application but a continuation of the February 2022 strata application.

The 2022 Tribunal Decision

1. [8]

   On 11 November 2022, the Consumer and Commercial Division of the Tribunal (per D Goldstein, Senior Member) dismissed the April 2022 strata application on the basis that the claim for damages under s 106(5) of the SSM Act had been brought out of time (s 106(6) of the SSM Act). Furthermore, the Tribunal held that s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (“the Act”) did not apply to extend the period referred to in s 106(6) of the SSM Act: Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2022] NSWCATCD 213 (“2022 Tribunal Decision”).

The 2023 Appeal Decision

1. [9]

   On 6 March 2023, the Appeal Panel of the Tribunal (per G Curtin SC, Senior Member and D Fairlie, Senior Member) (“the 2023 Appeal Panel”) upheld the plaintiff’s appeal from the 2022 Tribunal Decision: Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2023] NSWCATAP 66 (“2023 Appeal Decision”). It was implicit in the 2023 Appeal Decision, that the April 2022 strata application was lodged out of time. Accordingly, the 2023 Appeal Panel’s attention focused on whether the Tribunal had the power to extend time, such that the April 2022 strata application could be brought within the jurisdiction of the Tribunal. The 2023 Appeal Panel held that the Tribunal did have the power to extend the time under s 106(6) of the SSM Act and remitted the proceedings back to the Tribunal, as originally constituted, to, inter alia, determine whether the plaintiff should be granted an extension in time.

The 2023 Tribunal Decision

1. [10]

   The remitted proceedings were listed again before Senior Member D Goldstein: Ha Nan Trading Pty Ltd v The Owners – Strata Plan No. 32396 (Civil and Administrative Tribunal (NSW), D Goldstein, Senior Member, 17 November 2023, unrep) (“2023 Tribunal Decision”). In the remitted proceedings Senior Member D Goldstein considered the question of whether the plaintiff should be granted an extension in time. Senior Member D Goldstein acknowledged that in the 2022 Tribunal Decision he found that the April 2022 strata application was lodged out of time (2023 Tribunal Decision at [2]).

2. [11]

   On 17 November 2023, Senior Member D Goldstein dismissed the plaintiff’s application for an extension of time. Senior Member D Goldstein found that the plaintiff’s explanation for delay was not satisfactory and that the plaintiff failed to demonstrate that its case had more substantial merit than being fairly arguable.

THE DECISION

1. [12]

   The plaintiff appealed the 2023 Tribunal Decision under s 80 of the Act.

2. [13]

   Section 80 of the Act provides as follows:

3. [14]

   The provisions of s 80 of the Act were applicable as s 80(1) provided for an appeal from an internal decision, being the 2023 Tribunal Decision.

4. [15]

   Subsection 80(2) of the Act provides the scope of an internal appeal. Subsection 80(2)(a) of the Act did not apply to the plaintiff’s appeal, as the 2023 Tribunal Decision was not an interlocutory decision. Hence, the plaintiff’s appeal was heard pursuant to s 80(2)(b) of the Act, which provides for an appeal “as of right on any question of law” and with leave of the Appeal Panel “on any other grounds”.

5. [16]

   In substance, the plaintiff raised two issues on the appeal from the 2023 Tribunal Decision. First, the plaintiff contended that the Tribunal had erred in determining that the April 2022 strata application was lodged out of time (“question 1”). Secondly, the plaintiff contended that, if the April 2022 strata application was lodged out of time, the Tribunal erred in determining not to extend the time under to s 41 of the Act (“question 2”).

6. [17]

   The Appeal Panel, constituted by Senior Member A Bell SC and Senior Member L Wilson, answered both questions in the negative and, in respect of both questions, made orders refusing leave under s 80(2)(b) of the Act.

7. [18]

   The Appeal Panel found that question 1 involved a question of fact, thereby limiting the appeal to one requiring leave as opposed to an appeal as of right: the Decision at [38].

8. [19]

   In deciding whether to grant leave to the plaintiff in relation to question 1, the Appeal Panel took into account whether the plaintiff "may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or was against the weight of evidence or significant new evidence is now available": the Decision at [38(1)].

9. [20]

   The reasons for the Appeal Panel’s refusal of leave in relation to question 1 were as follows:

10. [21]

    In relation to question 2, the Appeal Panel did not expressly pass upon the issue of whether the appeal involved a question of law, and, therefore, whether the appeal was “as of right”. However, as the Appeal Panel resolved question 2 by refusing leave, as a matter of logic, it must be taken that the Appeal Panel considered that question 2 did not raise a question of law.

11. [22]

    The reasons for the Appeal Panel’s refusal of leave in relation to question 2, were as follows:

12. [23]

    I also note that the Appeal Panel made observations on the question of whether the Tribunal did have the power, by virtue of s 41 of the Act, to extend time under s 106(6) of the SSM Act. However, the Appeal Panel made no final determination, in that respect, and was content to deal with the question of leave in the manner described above.

THE NATURE OF THE APPEAL

1. [24]

   Although the plaintiff did not clearly identify the legal basis of the Appeal within the Summons, it became evident, during the course of the hearing of the Appeal, that the Summons constituted an appeal from the Decision under s 83 of the Act.

2. [25]

   Section 83 of the Act provides as follows:

3. [26]

   The Decision is an appealable decision of NCAT to this Court because it was a decision made by “an Appeal Panel” under an “internal appeal”: s 82(1)(a) of the Act. However, an appeal may only be made on a question of law: s 83(1) of the Act.

4. [27]

   An appeal under s 83(1) of the Act is not an appeal as of right but requires leave of this Court. The Appeal is confined to a question of law with respect to any decision made by the Tribunal.

GROUNDS OF APPEAL

1. [28]

   In the Summons, under the heading “APPEAL GROUNDS”, the plaintiff identified the grounds of appeal as follows:

2. [29]

   Those grounds are expressed in wide terms. Counsel for the defendant correctly submitted that the plaintiff had served in support of the Appeal several hundred pages of material which comprised statements and submissions “which are prolix and difficult to follow”. To the extent that material contains serious accusations of misconduct by legal professionals, those accusations are not sustainable and should not have been made by the plaintiff.

3. [30]

   It is unnecessary for the Court to consider each and every ground of appeal or what may potentially lie within the broad scope of the Appeal, particularly in the light of the conduct of the Appeal by the plaintiff.

4. [31]

   In Salmon v Albarran [2025] NSWCA 42, Leeming JA (Ward ACJ and Ball JA agreeing) relevantly stated (albeit, with respect to appeals brought as of right, which is not this case) at [47]:

5. [32]

   By the close of the plaintiff’s oral submissions, the issue that the plaintiff intended to be considered on the Appeal became apparent, namely, whether the Appeal Panel erred by finding that the April 2022 strata application was filed out of time (“the Issue”).

6. [33]

   That position became abundantly clear when the Court engaged with Mr Mei regarding the question of whether he contended that the Appeal Panel had erred in addressing the question of an extension of time to bring the April 2022 strata application. As the plaintiff was self-represented, the Court examined the question of the Appeal Panel’s determination to refuse leave to appeal in arguendo with counsel for the defendant. When similar issues were raised with the plaintiff, Mr Mei emphatically asserted that no part of the Appeal concerned questions revolving around the prospects of an extension of time to bring the April 2022 strata application, because of the strident position that the application was brought within time.

7. [34]

   The following passage, from the transcript of the proceedings, illustrates that position:

8. [35]

   In my view, that exchange, even with a self-represented litigant, is sufficient to exclude consideration as to whether the Appeal Panel was in error in refusing leave to appeal with respect to question 2. That consideration is buttressed by the fact that before the Appeal Panel, that issue was not specifically the subject of any ground of appeal or the subject of direct submissions by the plaintiff. Nor does the issue arise directly from the grounds of appeal or the plaintiff’s submissions in this Appeal.

9. [36]

   Whilst the miscellaneous materials relied on by the plaintiff may have some undefined potential connection to the plaintiff’s grounds of appeal, there were no contentions advanced by Mr Mei which would put the defendant on notice of the particular issues raised. The Court is in no better position.

10. [37]

    It follows, in my view, that the disposition of the Appeal must be confined to a consideration of the Issue.

11. [38]

    It was apparent from the defendant’s submissions that the first issue for consideration, in this Appeal, was whether there was a valid appeal from the Decision for the purposes of s 83 of the Act. The question of validity was focused upon whether the decision of the Appeal Panel, that the April 2022 strata application was lodged out of time, concerned only a question of fact, which is precluded by the terms of s 83 of the Act, which confines appeals to a “question of law”.

12. [39]

    Counsel for the defendant also made submissions as to why this Court should refuse leave to appeal.

13. [40]

    It is doubtful whether the plaintiff squarely addressed either of those issues. Rather, the plaintiff rehearsed similar arguments to those presented consistently before NCAT that, in substance, the April 2022 strata application had been filed within time because it was a continuation of the February 2022 strata application.

Does the Appeal involve a question of law?

1. [41]

   The distinction between what is or is not a question of law is vexed and context dependant: Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 ("Thomas and Naaz") at [52] (Leeming JA (with whom Meagher Ja and Griffiths AJA Agreed)).

2. [42]

   In Thomas and Naaz, Leeming JA stated the following in this respect (at [53] to [54]):

3. [43]

   The question of whether the April 2022 strata application was lodged within time, pursuant to s 106(6) of the SSM Act, represents consideration of a statutory test which, when no challenge is taken to the construction of its terms, is either satisfied or not as a matter of fact or a mixed question of fact and law.

4. [44]

   As mentioned, in this case, the plaintiff argued that the April 2022 strata application was lodged within time primarily because the February 2022 strata application was lodged within time, and it was the plaintiff’s contention that the April 2022 strata application was simply a continuation of the February 2022 strata application. The plaintiff did not raise any issue of construction of s 106(6) of the SSM Act. Hence, those contentions did not raise any question of law, but rather, in substance, a question of fact.

5. [45]

   I also note that this consideration accords with the Appeal Panel's determination: the Decision at [38(1)].

6. [46]

   There cannot be an appeal under s 83 of the Act on a question of fact alone (or a mixed question of fact and law) and, in the result, the Appeal should be dismissed.

Leave to appeal

1. [47]

   In that light, it is unnecessary to consider the question of leave to appeal under s 83 of the Act. Further, the plaintiff did not address leave to appeal.

2. [48]

   However, in my view, the Court should, subject to the resolution of the preceding question, nonetheless briefly pass upon the question of leave having regard to the submissions of the defendant.

3. [49]

   The question of leave must relate to the refusal to grant leave by the Tribunal with regard to question 1.

4. [50]

   The principles as to leave to appeal, in this respect, may be briefly stated.

5. [51]

   In BHP Billiton Ltd v Dunning [2013] NSWCA 421 (“BHP Billiton”), Gleeson JA (with whom Macfarlan JA and Young AJA agreed) set out the following principles with respect to a grant of leave to appeal (at [19] and [20]):

6. [52]

   In Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164, Basten JA (with whom Tobias AJA agreed) stated (at [35]):

7. [53]

   In Colin Davidson v Seachange Living NSW Pty Ltd [2023] NSWSC 292, Harrison AsJ stated (at [52]):

8. [54]

   In my view, leave should be refused to bring the Appeal for the following reasons:

   1. (1)

      The essential factual sub-stratum has not changed from what was ventilated before the Appeal Panel. The claim which was heard at first-instance was filed on 4 April 2022, being over 2 years after the plaintiff became aware of the relevant loss (10 February 2022), despite the plaintiff having been legally represented for most of that period. [1]

   2. (2)

      The Appeal Panel refused leave to appeal in the Decision on the basis that the appeal had no prospect of success, as the facts before it demonstrated that the plaintiff had filed the April 2022 strata application out of time. For the reasons I will discuss below under the heading “April 2022 strata application out of time”, in my view, there is no apparent error in the Appeal Panel’s reasoning, in that respect.

   3. (3)

      There are no identified errors in the exercise of the Appeal Panel’s discretion qua House v King (1936) 55 CLR 499; [1936] HCA 40.

   4. (4)

      The plaintiff has not identified how it would suffer “a substantial miscarriage of justice” [2] from a refusal by the Appeal Panel to grant leave where, as a matter of fact, the claim was lodged out of time.

   5. (5)

      There is no issue of principle arising out of the resolution of the Issue: BHP Billiton.

April 2022 strata application out of time

1. [55]

   Whilst the plaintiff did not address the question of leave as such, I shall nonetheless deal with the plaintiff’s submissions as to why the April 2022 strata application was not filed out of time, as a factor indicating why leave to appeal should be refused.

2. [56]

   The plaintiff advanced the following submissions, in that respect:

   1. (1)

      An NCAT Registrar closed the February 2022 strata application because the plaintiff had not completed mediation. However, the plaintiff was in the process of having mediation.

   2. (2)

      An NCAT Registrar told Mr Mei that he was “still able to make the application after the mediation” and “[the Registrar] knows the law very well.”

   3. (3)

      The April 2022 strata application was “the same application which was closed” by the Registrar in February 2022 and “all actions thereafter was actually continuous from the first action… [t]herefore I have never really delayed. There is never any time outside the two years, and therefore I have never applied for any extension.”

3. [57]

   The requirement to undergo mediation is found in s 227 of the SSM Act. Section 227 of the SSM Act provides as follows:

4. [58]

   With respect to the plaintiff’s first submission, s 227 of the SSM Act requires that a registrar “must not accept an application” unless mediation has been attempted but was not successful (s 227(1)(a)), or “a party refused to participate in the mediation” (s 227(1)(b)), or “the registrar considers that mediation is unnecessary or inappropriate in the circumstances” (s 227(1)(c)). Subsections (a) to (c) offer alternative preconditions to satisfy s 227 of the SSM Act. However, the latter two have never been raised and, therefore, do not arise in this case.

5. [59]

   As at February 2022, the precondition that mediation had been attempted but was not successful could not be fulfilled as the mediation, on Mr Mei’s submission, had not commenced. The mediation, in fact, did not take place until 22 April 2022.

6. [60]

   In answer to the plaintiff’s second submission, I note that the email the plaintiff relied upon of 11 February 2022 was not from a Registrar but from a member of the registry staff at NCAT, a “Senior Registry Officer”. The email was as follows:

7. [61]

   NCAT registry staff do not have power to extend time, and, in any event, in my view, this email did not communicate to Mr Mei that he would necessarily still be able to make an application after the mediation. The email was brief and plainly written in the context where no mediation had occurred. The NCAT Registry clearly had not considered the material date that Mr Mei first became aware of the loss he sought to claim. I additionally note that Registry staff are not legally trained and there is no indication in the text of the email that individualised advice, legal or otherwise, was being given.

8. [62]

   In relation to the plaintiff’s third submission, first, as earlier mentioned, the plaintiff's argument completely ignores the fact that the February 2022 strata application was never accepted by the Tribunal because the precondition for the filing of the application had not been met, namely, there had not been an unsuccessful mediation for the purposes of s 227(1)(a) of the SSM Act.

9. [63]

   Secondly, the email of 11 February 2022 from NCAT Registry staff made it clear that “[t]his file is closed and cannot be re-opened” and goes on to discuss the process of lodging a “new application”. I also note that the file numbers of the applications lodged in February 2022 (SC 22/04591) and in April 2022 (SC 22/19375) were different.

10. [64]

    Thirdly, the Appeal Panel considered this question and held, as earlier extracted, that the April 2022 strata application “was not a ‘continuous proceedings’ from 2 February 2022 as submitted by Hua Nan”: the Decision at [47].

11. [65]

    The Appeal Panel’s finding, that the April 2022 strata application was a discrete application, not continuous from the February 2022 strata application, and was lodged out of time pursuant to s 106(6) of the SSM Act, does not demonstrate error.

ORDERS

1. [66]

   In the circumstances, the Court makes the following orders:

   1. (1)

      To the extent that the question of leave to appeal arises, leave to appeal is refused.

   2. (2)

      The Summons is otherwise dismissed.

   3. (3)

      The plaintiff shall pay the defendant’s costs of the Summons as agreed or, in default of agreement, as assessed.