Keevers v Sarraf Property Group Pty Ltd

1. [1]

   HER HONOUR: This matter involves an appeal from a decision of an Appeal Panel of the NSW Civil and Administrative Tribunal (“NCAT”).

2. [2]

   By Amended Summons filed on 26 October 2021, the plaintiff appeals (and, to the extent necessary, seeks leave to appeal) two decisions of the Appeal Panel of the NSW Civil and Administrative Tribunal (NCAT Appeal Panel) dated 12 May, 22 July 2021 and a 30 June 2020 decision in relation to costs.

3. [3]

   The plaintiff is Mr Francis Keevers. The first defendant is Sarraf Property Group Pty Ltd (“Sarraf Property Group”) which includes two Sarraf brothers, Mr Norman Sarraf and Mr John Sarraf. The second defendant is Mr Konn Palonis. Without meaning any disrespect, I will refer to Konn Palonis as “Palonis” for convenience. The third defendant is the Owners of Strata Plan 1813. The fourth defendant is Peta Bourke. The fifth defendant is Joanna Fardell. I will explain later in this judgment why the fourth and fifth defendants have played no role in this appeal. Mr Philips of Counsel appeared for the plaintiff. Mr Sirtes SC appeared for the first to third defendants. The parties relied upon a courtbook (“CB”). The parties made very lengthy submissions (about 80 pages) so I have endeavored to condense them so to reproduce their submissions with some clarity.

4. [4]

   The plaintiff relevantly seeks the following orders:

   1. (1)

      Leave granted to the plaintiff to appeal from the decisions below, including the orders made on 30 June 2020,12 May 2021 and 22 July 2021.

   2. (2)

      Appeal allowed.

   3. (3)

      Orders numbered 1 and 2 made below on 30 June 2020, Orders numbered 2, 3, 4, 5, 6 made below on 22 July 2021 and orders numbered 2 and 3 made below on 12 May 2021 be set aside and the appeal below be dismissed.

   4. (4)

      Order 1 in proceedings SC 19/28238 and SC 19/28234 made on 25 May 2020 be restored.

   5. (5)

      Orders 1, 2 and 3 made in proceedings SC 19/28238 and SC 19/28242 and SC 19/28244 made on 14 July 2020 be restored.

   6. (6)

      First and second defendants to pay the plaintiff's costs of this appeal and of the appeal below.

Background

1. [5]

   The strata building is a two storey, four unit block in Maroubra which was constructed in the 1920s. Strata Plan 1813 comprises four lots, with Lots 15 and 16 on the ground floor and Lots 17 and 18 on the first floor. Lots 15 and 18 each have a unit entitlement of 26% while Lots 16 and 17 each have 24%.

2. [6]

   At the time of the NCAT proceedings, Keevers was (and has been since 1978) the owner of Lot XX in Strata Plan 1813, located in Maroubra (“the strata building”). Lot XX had and has a unit entitlement of 24% in the strata building. Marta Casabon is the spouse of Keevers.

3. [7]

   The first and second defendants, Sarraf Property Group and Palonis, have since about January 2016 owned Lots 15 and 18 in the strata building, which together have a combined unit entitlement in the strata building of 52%.

4. [8]

   The Third Defendant is the Owners Corporation of the strata building (“Owners Corporation”)

5. [9]

   The Fourth and Fifth Defendants (“Bourke” and “Fardell”) are sisters, who between about May 2018 and June 2021 were the owners of Lot 16 in the strata building (having inherited that lot from their late father). Lot 16 has a unit entitlement of 24% in the Strata building. In June 2021, Bourke and Fardell sold Lot 16 to Sarraf Property Group and Palonis, resulting in Sarraf Property Group and Palonis acquiring a combined unit entitlement of 76% in the strata building. The sale of Lot 16 explains why the fourth and fifth defendants did not appear at the hearing as they no longer had any interest in their property.

6. [10]

   During the Appeal Panel proceedings, Sarraf Property Group and Palonis were referred to as the majority lot owners, while Keevers and Bourke and Fardell were referred to as the minority lot owners. Now Keevers is the minority owner and Sarraf Property Group and Palonis are the majority lot owners.

7. [11]

   On 10 April 2017, an extraordinary general meeting of the Owners Corporation on was held, where it was resolved that the Owners Corporation engage a building consultant to prepare a report in relation to any structural or remedial issues of the building.

8. [12]

   On 9 June 2017, the Strata Manager received a Building Inspection Report prepared by Strata Defects Specialists, Michael Dakhoul, which provided an opinion in relation to defects within the strata building (“Dakhoul report”). The report concluded that the estimated cost of undertaking work to remedy the defects in the strata building was $1,006,425.00.

9. [13]

   On or about 13 November 2017, the Owners Corporation circulated a Notice of Meeting for an Annual General Meeting. The notice included proposed resolutions to the following effect: building contractors be retained to undertake in the order of $800,000 in building works to the strata building; a Special Levy for a total amount of $1,000,000 be struck to assist with payment for the building works; the number of members of the Strata Committee for the ensuing year to be decided, and such members to be elected.

10. [14]

    On 27 November 2017, the solicitor for Keevers informed the strata manager that he considered the Notice of Meeting to be defective in several respects, and that, as a result, if the proposed AGM were to proceed, then resolutions passed at it would be invalid.

11. [15]

    On 28 November 2017, the AGM of the Owners Corporation occurred, with Keevers, Bourke and John Sarraf (as company nominee for Sarraf Property Group) were present. At this meeting the following matters were resolved by ordinary resolution, only 3 members were elected to the Strata Committee, excluding Keevers; approval of expenditure for building works, and special levies, of about $980,000 in total, amounting to about $250,000 for each of the 4 lots (“2017 Special Levies”).

12. [16]

    Both Keevers and Bourke and Fardell refused to pay the 2017 Special Levies on various grounds, including that they were invalidly struck. This led to the commencement of the debt recovery proceedings by the Owners Corporation against Keevers and Bourke and Fardell in the District Court.

13. [17]

    Keevers, Bourke and Fardell obtained a building condition report which indicated that, contrary to the Dakhoul Report, the strata building was in a generally fair condition and required only about $77,650 in essential works in order to rectify the common areas and common property. In particular, this report described the roofing membrane as being in very good condition and reported as being only a few years old, and that the perimeter parapet wall had recently been capped.

14. [18]

    There has been continuing, highly contested litigation in various Courts and NCAT, between the parties. I shall set out the litigation relevant to these proceedings.

15. [19]

    On 23 February 2018, by summons, Keevers commenced proceedings against the Owners Corporation in the Equity Division of this Court (“SC Proceedings”) and then filed Points of Claim on 14 April 2018. The Owners Corporation was the sole defendant to those proceedings, with Keevers (initially) the sole plaintiff. The initial relief sought in the Summons related to a by-law which had been passed by the Owners Corporation concerning garage spaces. This issue has no significance in this appeal.

16. [20]

    On 30 May and 3 July 2018, the Owners Corporation commenced (separate) debt recovery proceedings against Keevers, and Bourke and Fardell, in the District Court of NSW (“DC Proceedings”) seeking payment of the unpaid 2017 Special Levies. On 6 July and 6 August 2018, defences were filed in the District Court. On 3 August and 7 December 2018, consent orders were made transferring the DC Proceedings to the Supreme Court and ordering that they be heard and determined together with the SC Proceedings.

17. [21]

    On 22 March 2019, Keevers served proposed Amended Points of Claim in the SC Proceedings that included adding Bourke and Fardell as plaintiffs.

18. [22]

    On 1 April 2019, the SC and DC Proceedings were listed for hearing before Darke J.

19. [23]

    On 3 June 2019, Amended Points of Claim were filed in the SC Proceedings in which Bourke and Fardell were added as plaintiffs. The relief sought in the Amended Points of Claim was expanded to include orders (pursuant to ss 87 237 Strata Schemes Management Act 2015 (NSW)) reducing the 2017 Special Levies down to $25,000 for each lot owner and for the appointment of an independent strata manager to exercise all the functions of the Owners Corporation. The Owners Corporation remained as the sole defendant to those proceedings.

20. [24]

    On 14 June 2019, Darke J made orders transferring both the SC Proceedings and DC Proceedings to NCAT for determination.

21. [25]

    On 24 July 2019, case management orders were made in the proceedings by NCAT (Ex C in this Appeal). The relevant orders to this appeal are:

22. [26]

    Neither Sarraf Property Group nor Palonis availed themselves of this opportunity to be joined as a party to the proceedings. The directions included were that if they were not joined as parties they could not make submissions before the Tribunal Member. Hence they did not make submissions before the Tribunal Member. I shall refer in more detail to what transpired before Deputy President Westgarth shortly.

23. [27]

    On 6, 7 and 8 April, 14 May and 14 July 2020, the proceedings were heard before Senior Member Ellis SC (“the Senior Member”) Neither Sarraf Property Group nor Palonis gave evidence or made submissions. The Senior Member delivered his substantive reasons and made orders on 25 May 2020 and delivered further reasons and made orders for costs on 14 July 2020 (Costs orders). The relevant orders made by Senior Member Ellis on 25 May 2020 are as follows:

    1. (1)

       Rollings and Tyrell Pty Ltd are appointed as strata managing agent to exercise all the functions of the Owners Corporation pursuant to s 237 of the Strata Schemes Management Act

    2. (2)

       The appointment is to continue for a period of two (2) years from the date of these orders.

    3. (3)

       Orders pursuant to s 87 Strata Schemes Management Act reducing the 2017 Special Levies from $980,000 in total down to $80,000.

24. [28]

    The relevant orders made on 14 July 2020 are as follows:

    1. (1)

       that the Owners Corporation is to pay the costs of Keevers, Bourke and Fardell of (each of) the proceedings, and

    2. (2)

       The Owners Corporation is not to recoup its costs from any levy or fund which includes monies contributed by those parties (costs orders).

25. [29]

    On 26 May 2020, the Owners Corporation filed a Notice of Appeal to the Appeal Panel seeking to appeal all of the orders of Senior Member. An application seeking leave to appeal and a stay of the order for compulsory strata manager was later withdrawn. While the Tribunal Member had made an order appointing an independent Strata Manager, Rollings and Tyrell Pty Ltd for a period of 2 years (from 25 May 2020) at the time of the hearing of the appeal in this Court, the period of appointment of the independent strata manager had expired. The Owners Corporation was named as the appellant in the appeal, with Keevers, Bourke and Fardell named as the defendants.

26. [30]

    The orders made by the Deputy President assume importance in the current appeal to this Court.

27. [31]

    On 30 June 2020, at the hearing of the stay application (before Deputy President Westgarth constituting the Appeal Panel), the following transpired:

28. [32]

    I have extracted the relevant portions of the transcript of the hearing before Deputy President Westgarth on the topic of the joinder of parties.

29. [33]

    At T7.12-T9-22 (CB 364-366), the following exchange took place between Mr Philips, appearing for Keevers, Mr Moir, appearing for Sarraf Property Group and the Deputy President:

The Appeal Panel

1. [34]

   On 28 October 2020, Keevers, Bourke and Fardell served their submissions on the appeal. In [5]-[11] of those submissions, they raised, as a threshold issue, the standing of Sarraf Property Group and Palonis to bring or be joined as plaintiffs in the appeal. They submitted that, by virtue of the provisions of s 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW)(“NCAT Act”), as they were not parties to the proceedings below, Sarraf Property Group and Palonis did not have any standing to, and therefore could not, to bring the appeal to the Appeal Panel.

2. [35]

   On 27 November 2020, Sarraf Property Group and Palonis served their written submissions in reply.

3. [36]

   On 8 and 17 December 2020, the hearing of the appeal took place before the Appeal Panel comprised of Durack SC and D Robertson, Senior Members (“The Appeal Panel”). On 12 May 2021, the Appeal Panel delivered its substantive reasons, and delivered further reasons on costs. It made orders on 22 July 2021. The orders made by the Appeal Panel were in substance as follows:

   1. (1)

      set aside the s 87 orders (reducing the 2017 Special Levies to $80,000 in total) save to the extent that each required payment of a levy referable to repair work required to the common stairs in the sum of $80,000;

   2. (2)

      remit to a differently constituted Tribunal for redetermination (based on evidence already adduced and such further evidence as may be allowed) all claims made concerning the 2017 Special Levies, the appointment of a compulsory strata manager and the question of costs of the proceedings at first instance; and

   3. (3)

      Sarraf Property Group’s costs of the appeal to be paid by Keevers, Bourke and Fardell.

4. [37]

   On 14 May 2021, Sarraf informed Keevers (by email) that the previous strata manager (CF Strata) had refused to take back management of the strata scheme and that the Sarraf Property Group would be nominating a different manager to replace the compulsory strata manager as soon as practicable.

5. [38]

   On 20 May 2021, Sarraf informed Keevers (by email) that Sarraf Property Group and a company controlled by Palonis had entered into a contract to purchase Lot 16 from Bourke and Fardell.

6. [39]

   On 28 May 2021, the solicitors for Sarraf Property Group and Palonis informed the solicitor for Keevers that as the plaintiffs now control at least 75% of the lots in the strata scheme, they had been instructed to commence the strata renewal process in Part 10 of the Strata Schemes Development Act 2015 (NSW).

7. [40]

   On 30 May 2021, the solicitors for the Sarraf Property Group informed the solicitor for Keevers (by email) that the strata manager appointed by the Tribunal (Ms Tyrrell) had ceased managing the scheme, had handed over the books and records to the plaintiffs and they had passed a motion appointing their preferred strata manager to run the scheme.

8. [41]

   On 1 September 2021 a development application was lodged with Randwick Council (on the instructions of Sarraf) for the demolition of the strata building and the construction of nine apartments on the site in its place.

9. [42]

   On 23 September 2021, an order was made by NCAT that the remitted proceedings be stayed pending finalisation of the appeal to this Court.

10. [43]

    Currently, the strata block is vacant. The tenants have vacated the premises. The power has been turned off.

11. [44]

    On 8 July 2022, I granted an urgent stay of the execution of District Court judgment in proceedings number 2022/123197:

Grounds of appeal in this Court

1. [45]

   The grounds of appeal as set out in the amended summons are numerous. They are follows:

   1. (1)

      The Appeal Panel erred, in law, in finding that:

   2. (2)

      The Appeal Panel erred, in law, in finding that:

   3. (3)

      The Appeal Panel erred, in law, in:

   4. (4)

      The Appeal Panel erred, in law, in finding and ordering, in its second Reasons for Decision dated 30 July 2021 that:

2. [46]

   While there are numerous grounds of appeal, they fall into three broad categories. The first group consists of Appeal Grounds 1A, 1B and 1 in the amended summons. In these grounds, the plaintiff submitted that the Appeal Panel erred, in law, in ordering that Sarraf Property Group and Palonis be joined as plaintiffs (“Joinder of parties”). This is the main issue in this appeal. The second group of appeal grounds consists of Appeal Grounds 2(a), 2(b)-(d) and 3(a)-(b). These grounds allege errors made by the Appeal Panel as to findings of evidence and fact (“findings of fact and evidence”). The third group, Appeal Ground 4, refers to costs.

Extension of time to appeal

1. [47]

   The first issue to be determined in these proceedings is whether and extension of time to appeal should be granted. It is my view that at the time Sarraf Property Group and Palonis were joined as parties, it may not have been clear to Keevers, Bourke and Fardell whether they should have appealed to the Court of Appeal in relation to the decision of Deputy President Westgarth (Comprising of the Appeal Panel) before the Appeal Panel heard the appeal. As was recently said by the Court of Appeal in Chalak v G & G Michael Pty Ltd [2022] NSWCA 116 at [9], the Court is cautious about granting leave to appeal from interlocutory judgments, especially those that are concerned with practice and procedure. As the plaintiff contends that had the appeal been upheld, there would have been no utility in incurring additional costs in appealing to the Court of Appeal on an interlocutory matter. In these circumstances, I grant an extension of time to appeal to this Court.

Leave to appeal

1. [48]

   The next issue is whether leave to appeal should be granted, I can only make a determination on these topics after I have examined the grounds of Appeal and in particular in particular Grounds of appeal 1A, 1B and 1.

2. [49]

   Section 83 of the NCAT Act relevantly reads:

3. [50]

   There are many cases which deal with the principles governing leave to appeal. I will refer to Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 (“Das”), Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262 (“Lee”) and Coulter v R [1988] HCA 3; 164 CLR 350 (“Coulter”).

4. [51]

   In Das, the Court of Appeal set out the principles to be considered in deciding whether leave to appeal should be granted. At [32], [33] and [35], Basten JA stated:

5. [52]

   Similarly, in Lee, Bathurst CJ outlined the principles relevant to the granting of leave at [12]:

6. [53]

   The authorities referred to above are equally applicable in these proceedings. In determining whether or not I should grant leave to appeal, I shall consider whether the matters raised on appeal to this court involve issues of principle, questions of public importance, and whether it is reasonably clear that there has been an injustice in the sense of going beyond what is reasonably arguable that the Appeal Panel was in error.

The relevant statutory provisions

1. [54]

   It is necessary to briefly refer to the most relevant statutory provisions of the Strata Schemes Management Act, the NCAT Act and Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) 6.19.

2. [55]

   While some of the statutory provisions of the Strata Schemes Management Act are not directly relevant, they provide a background framework for the Tribunal Member’s and the Appeal Panel’s decisions.

3. [56]

   The Owners Corporation is responsible for the management of the strata scheme: s 9.

4. [57]

   Section 44(1) sets out the functions of treasurer of Owners Corporation. They include: to notify owners of any contributions levied in accordance with this Act; to receive, acknowledge, bank and account for any money paid to the Owners Corporation; to prepare any strata information certificate; and to keep the accounting records and prepare the financial statements.

5. [58]

   The Owners Corporation must establish a capital works fund: s 74(1). The Owners Corporation must pay into the capital works fund contributions levied on lot owners for payment into that fund: s 74(2)(a). The Owners Corporation may pay money from the capital works fund only for prescribed payments, which includes payments of the kind for which estimates have been made under s 79 (2): s 74(4)(a).

6. [59]

   An Owners Corporation must at each annual general meeting estimate how much money it will need to credit to its capital works fund for actual and expected expenditure for various purposes, including to replace or repair the common property: s 79(2). It must prepare and, in so far as practicable, implement a 10-year capital works plan including the detail and costing in respect of the works: s 80.

7. [60]

   The Owners Corporation must determine the amounts to be levied as a contribution to the capital works fund to raise the amounts estimated as needing to be credited to that fund and levy on each person liable for such contribution: s 81. Such a contribution is, if the Owners Corporation so determines, payable by the regular periodic instalments specified in the determination setting the amount of the contribution: s 81(5).

8. [61]

   A contribution levied by an Owners Corporation becomes due and payable on the date set out in the notice of the contribution: s 83(3).

9. [62]

   Section 86 makes provision for recovery of unpaid contributions. It reads:

10. [63]

    Section 87 makes provision for the Tribunal to vary a contribution. It reads:

11. [64]

    The Owners Corporation is obliged to maintain and repair the common property. Section 106, reads:

12. [65]

    Section 237 reads:

13. [66]

    The relevant sections of the NCAT Act are as follows.

14. [67]

    Section 29 is contained in Part 3 which provides for the jurisdiction of the Tribunal.

15. [68]

    Part 4 Div 1 of the Act provides for the practice and procedure of the Tribunal. Sections 32(3)(a) and 36 read:

16. [69]

    Part 4, Division 3 makes provisions for participation in proceedings. Section 44 reads:

17. [70]

    Sections 80, 81 and 82 read:

18. [71]

    Finally, UCPR 6.19 reads:

The Appeal Panel’s decision – joinder of parties

1. [72]

   The decision to which leave to appeal is sought is The Owners – Strata Plan No 1813 v Keevers [2021] NSWCATAP 130, a decision of the Appeal Panel dated 22 July 2021. The grounds of appeal [5]-[24] include many subparagraphs (CB 231-233).

2. [73]

   On this topic of the joinder of parties namely, Sarraf Property Group and Palonis, the Appeal Panel summarised the respondents submissions as follows:

3. [74]

   On this topic, the Appeal Panel concluded at [86]-[89] and [91]:

Appeal Grounds 1A, 1B and 1 – Joinder of parties

1. [75]

   As set out earlier, by appeal grounds 1A, 1B and 1 in the Amended Summons, Keevers contends that the Appeal Panel erred, in law, in ordering that Sarraf Property Group and Palonis be joined as plaintiffs (or in not limiting such joinder) in circumstances where the provisions of the NCAT Act and the Strata Schemes Management Act provide that only parties to the proceedings can bring an appeal and only the Owners Corporation can bring proceedings for unpaid strata levies, and in finding that Keevers could not challenge the decision to join Sarraf Property Group and Palonis as plaintiffs.

2. [76]

   In [86], [87] and [91] of the Appeal Panel’s reasons, the Appeal Panel made the following findings:

3. [77]

   For the reasons set out below, each of these findings was, with respect, wrong, and the Appeal Panel erred in law in so finding.

4. [78]

   First, implicit in these findings is an assumption that it was open to Keevers to bring a freestanding appeal challenging the interlocutory decision of the Appeal Panel to join the Sarraf Property Group to the appeal. This assumption is incorrect because:

5. [79]

   Second, Keevers did, as a matter of substance, contend that the Appeal Panel should, in effect, revoke the interlocutory decision of the Appeal Panel (comprising the Deputy President). In submitting that the Appeal Panel should find that the Sarraf Property Group had no standing to bring the appeal and advancing the s 80 contention, Keevers was, in substance and effect, contending that the Deputy President had erred in joining them as plaintiffs and inviting the Appeal Panel to revoke that decision.

6. [80]

   Third, in circumstances where there is no practical way for a party to appeal from an interlocutory decision of the Appeal Panel (at least until the whole appeal has been determined and an appeal can be made to the Court), the challenge to the substance of the Deputy President's decision (by advancing the s 80 contention) was not an impermissible collateral challenge to that decision. To the contrary, it was a reasonable and practical way of drawing to the attention of the Appeal Panel the reality that the Sarraf Property Group lacked standing and that by incident of s 80 the whole appeal was misconceived, and the Appeal Panel lacked jurisdiction to hear and determine it.

7. [81]

   There is no specific provision in the NCAT Act that provides for an appeal to be brought by a party which was not a party to the proceedings in which the decision was made. Even a party which actively participated, made submissions to and was an intervenor in the proceedings, cannot be characterised as a party in the Tribunal proceedings below for the purposes of NCAT internal appeal rights under s 80 of the NCAT Act: Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 at [74] per Armstrong P and Senior Member Britton (“Rice Marketing Board”).

8. [82]

   This is consistent with the more general principle that an appeal cannot be brought by an entity which was not a party to the proceedings in which the impugned decision was made. This in turn is supported by the following principles: it is parties, and parties alone, which have standing to conduct and appear in proceedings: see Australian Railways Union v Victorian Railways (1971) 125 CLR 319 at 331 per Dixon J. Any person who had an interest in and could make themselves a party to proceedings, but knowing what was passing, was content to stand by and see the battle fought by somebody else in the same interest, should be bound by the result, and not be allowed to re-open the case (or, it follows, appeal from the result): Administration of Papua New Guinea v Daera Guba (1972) 130 CLR 353 at 456 per Gibbs J; Osborne v Smith (1960) 105 CLR 153 at 155 per Kitto J; Nana Ofori Atta II v Nana Abu Bonsra II [1958] AC 95 at 102; House of Spring Gardens Ltd v Waite [1991] 1 QB 241 at 252-253.

9. [83]

   There are sensible practical reasons for this. They are that if it were otherwise, it would be possible for an entity which may have a practical interest in the outcome of proceedings (such as a lot owner in a strata scheme) to decline an opportunity to participate as a party to proceedings (and thereby avoid any potential exposure to an adverse costs order) but still be able to appeal from a decision in those proceedings (to which it was not a party).

10. [84]

    As Sarraf Property Group and Palonis were not parties to the proceedings before the Tribunal, given the terms of s 80(1), absent being joined as parties to the proceedings, they had no standing to bring or continue any appeal from the decision of the Tribunal and, it follows, the Appeal Panel had no jurisdiction to entertain or determine any appeal brought by such entities (not being parties to the proceedings in which the decision was made).

11. [85]

    Sarraf Property Group and Palonis sought to circumvent this impediment to any appeal by them by making a joinder application. The Appeal Panel erred in granting this application, and in joining Sarraf Property Group and Palonis as plaintiffs in the appeal, for these reasons:

12. [86]

    Put another way, the Appeal Panel's decision to allow Sarraf Property Group and Palonis to be joined as plaintiffs put them in a more advantageous position than they would have been if they had been joined to the proceedings below. As a result of the Appeal Panel's decision, Sarraf Property Group and Palonis enjoyed the benefits of being able to appeal from the decision of the Tribunal without facing any of the burdens imposed on the parties to the proceedings before the Tribunal (such as exposure to an order for costs). In short, the Appeal Panel's decision to join the Sarraf Property Group as plaintiffs led to substantive unfairness because it enabled entities who elected not to participate in proceedings to nevertheless appeal from a decision made in those proceedings.

13. [87]

    The Appeal Panel compounded its initial error (in joining Sarraf Property Group and Palonis as plaintiffs) by proceeding to hear an appeal brought by two entities who were not a party to the proceedings in which the decision had been made. The Appeal Panel, even after (wrongly) ordering that Sarraf Property Group and Palonis be joined as plaintiffs, did not have any jurisdiction to hear (and determine) the appeal, because the Owners Corporation did not seek to prosecute the appeal and Sarraf Property Group and Palonis were not, and had not been made, parties to the proceedings in which the subject decision had been made, and therefore by incident of s 80(1) could not bring the appeal.

14. [88]

    Section 80(1) of the NCAT Act only allows an appeal to be brought by a party to the proceedings in which the decision was made. The joinder of a party as an plaintiff in the appeal (but not as a party to the proceedings below) does not overcome this fundamental bar. The only way that Sarraf Property Group and Palonis could have (properly and legitimately) overcome the clear words of s 80(1) and ensured they would have an ability to appeal from the decision of the Tribunal, was by seeking to be joined as a party to the proceedings below before the Tribunal (not to the appeal). This they did not do, either when they were expressly given the opportunity to do so in 2019, or subsequently.

15. [89]

    This section 80 contention was, in substance, advanced by Keevers before the Appeal Panel when he submitted (having referred to s 80(1)) that the appeal (as advanced by Sarraf Property Group and Palonis but not the OC) should be dismissed at the threshold on the basis that it was not properly brought by a person with standing to do: see Appeal Panel Reasons 1 [83]. The Appeal Panel failed to (properly) address this submission because it (wrongly) found that the contrary position had already been determined by the Appeal Panel (comprising the Deputy President) on 30 June 2020: see Appeal Panel Reasons 1 [87]. This finding was wrong because on 30 June 2020 the Deputy President had not determined that, for the purposes of s 80(1), Sarraf Property Group or Palonis had standing to bring the appeal, or if he had (implicitly) done so, he was in error, because neither of those entities was, or had been made, a party to the proceedings in the Tribunal, and therefore had no standing to bring the appeal.

16. [90]

    At [87], the Appeal Panel (wrongly) found that the short answer to the s 80 contention was that the contrary position had already been determined by the decision made by the Deputy President on 30 June 2020. For the reasons set out above, this was no answer to the s 80 contention and the Appeal Panel was wrong to so find. Not only did this finding involve circular logic but it was wrong in point of fact. The Deputy President had simply made an order acceding to the (ad hoc) application that Sarraf Property Group and Palonis be joined as additional plaintiffs. In so doing, he did not provide any reasoning or make any findings, including any finding that the Sarraf Property Group had standing to bring the appeal. Contrary to the conclusion (and finding) of the Appeal Panel, the Deputy President did not order that the Sarraf Property Group be joined as parties to the proceedings (and thereby overcome the s 80 contention).

17. [91]

    Sarraf Property Group and Palonis sought to outflank the s 80 contention by submitting (in reply) that it amounted to a triumph of form over substance and, in effect, that any procedural defect could be cured by them being joined to the proceedings below and bringing derivative proceedings on behalf of the Owners Corporation: see [4]-[7] of Sarraf Property Group Reply Submissions. For the reasons which follow, these submissions should have been rejected by the Appeal Panel (and it erred in not doing so).

18. [92]

    First, it cannot be said that the clear terms of s 80(1) amount to a triumph of form over substance. As has been set out above, there are sensible and compelling reasons why a person who was not a party to the proceedings in which a decision was made, cannot have standing to bring an appeal from that decision, not least that if it were otherwise a person who was not a party to proceedings could nevertheless appeal from a decision made in those proceedings. This was, in effect, conceded by Sarraf Property Group and Palonis who submitted that the Tribunal could overcome any deficiency in form by making a further order pursuant to s 44 joining them to the proceedings below (which the Appeal Panel erroneously failed to do): see [4] of Sarraf Property Group Reply Submissions.

19. [93]

    Second, while it may have been possible, at least in theory, for Sarraf Property Group and Palonis to have made an application to bring derivative proceedings on behalf of the Owners Corporation, that is not what actually occurred in this case. The theoretical possibility that such proceedings could have been brought was entirely hypothetical and as such provided no answer to the factual reality that Sarraf Property Group and Palonis had not sought to bring such proceedings and were not parties to the proceedings below (and therefore had no standing to bring the appeal by virtue of s 80).

20. [94]

    Third, any application to bring derivative proceedings on behalf of the Owners Corporation (in order to prosecute the appeal) would have been opposed by Keevers and the Appeal Panel would have been wrong to entertain or grant any such application. Sarraf Property Group and Palonis relied upon Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 1120 (“Glenquarry Park Investments”) at [8]-[9] and Tan v Owners Corporation Strata Plan 22014 (No 2) [2015] NSWSC 1920 (“Tan”) as authority for the proposition that where there has been a compulsory appointment, meaning there is no avenue for a lot owner to cause the Owners Corporation to pursue an appeal, a lot owner is entitled to bring derivative proceedings in the name of the Owners Corporation: see [6] of Sarraf Property Group Reply Submissions. However, those authorities do not go that far. Rather, they merely establish that, in an appropriate case, the Court can, pursuant to its inherent equitable or statutory jurisdiction (which the Tribunal and Appeal Panel do not enjoy) grant leave to parties who are connected with corporations to bring proceedings for the benefit or in the name of the corporation.

21. [95]

    In Tan, Robb J stressed (at [114]) that, in deciding whether to grant leave to individual lot owners to bring derivative proceedings in the name of the Owners Corporation, the fundamental question would be whether the applicants for leave wished to appeal in the name of the Owners Corporation to achieve a result that would be of a genuine benefit for the Owners Corporation, and for all of the lot owners, or whether, instead, the application was to secure a benefit for the applicants, but that for technical reasons requires the applicants to wield the name of the Owners Corporation to secure the benefit for themselves.

22. [96]

    Here, there was no application for leave to bring derivative proceedings (or an appeal) in the name of the Owners Corporation or for the benefit of the Owners Corporation as a whole. Instead, there was an ad hoc application for Sarraf Property group and Palonis to be added as plaintiffs, not joined as parties to the proceedings below, for the benefit of the Sarraf Property Group, not the Owners Corporation as a whole, or for all of the lot owners. The reference to, and reliance on, principles relating to the bringing of derivative proceedings on behalf of the Owners Corporation was entirely hypothetical and of no relevance (or assistance) because no application was in fact made at any time to bring such proceedings.

23. [97]

    Further, in addition to seeking to challenge the appointment of a compulsory strata manager, Sarraf Property Group and Palonis sought, as plaintiffs in their own right, to challenge the decision of the Tribunal to (substantially) reduce the 2017 Special Levies and in its place to make orders (pursuant to s 86 of the Strata Schemes Management Act) requiring Keevers (and Bourke and Fardell) to pay their share of these (disputed) special levies. In so doing, Sarraf Property Group and Palonis were not seeking to secure a benefit for the Owners Corporation as a whole and for all of the lot owners, but rather were seeking to secure a benefit for themselves as majority lot owners, and were acting contrary to the interests of Keevers (and Bourke and Fardell) as minority lot owners, and, on Keevers' case (and the findings made by the Tribunal) in furtherance of an improper purpose. This is consistent with the (unchallenged) finding of the Appeal Panel that it was the Owners Corporation, under the control of Sarraf Property Group and Palonis. which had pursued claims to be paid contributions to the special levy, and that the heart of the proceedings was a dispute between the majority lot owners (Sarraf Property Group and Palonis) and the minority lot owners (Keevers, Bourke and Fardell): see AP Reasons 1 [77].

24. [98]

    As such, and in these circumstances, in accordance with the principles summarised in Tan (and the authorities referred to in that decision), had any application to bring derivative proceedings in the name of the Owners Corporation actually been made, it would likely have been refused.

25. [99]

    Fourth, even if an application to bring derivative proceedings had been brought (and granted), it could only have been in relation to the issue of the appointment of the compulsory strata manager, not the whole of the appeal. This is because the express purpose and intention of the joinder of Sarraf Property Group and Palonis as plaintiffs was to enable there to be an appeal from the decision to appoint a compulsory strata manager (given that the compulsory strata manager so appointed was not likely to appeal from that decision): see [3] of plaintiffs Submissions in Reply and AP Reasons 1 [90]. In other words, any (theoretical) joinder order of Sarraf Property Group and Palonis to the proceedings below pursuant to s 44 of the NCAT Act would have been for the limited purpose of allowing an appeal with respect to the appointment of a compulsory strata manager, not for a wider purpose or to enable them to appeal with respect to all issues.

26. [100]

    Keevers submitted, in the alternative to the above submissions with respect to Ground 1A, that, if it be found that the Appeal Panel did not err in joining Sarraf Property Group and Palonis as additional plaintiffs and permitting them to advance the appeal (in the absence of the OC), then it erred by not limiting the joinder to those grounds of appeal relating to the appointment of a compulsory strata manager.

27. [101]

    The Appeal Panel was correct to observe that the obvious rationale for the decision to join Sarraf Property Group and Palonis as plaintiffs was that the compulsory strata manager may decide not to pursue, or actively participate in, the appeal in circumstances where one of the orders challenged was the strata manager's appointment: Appeal Panel Reasons 1 [79] and [89]. In other words, the lacuna which the joinder of the Sarraf Property Group sought to address was the possibility that the compulsory strata manager would have no interest in advancing an appeal which sought to challenge its appointment (as was submitted by the Sarraf Property Group: see Reply Submissions [3]).

28. [102]

    The corollary of these observations and submissions is that any joinder of the Sarraf Property Group should have been limited to addressing the anticipated lacuna in the appeal (namely a reluctance on the part of the compulsory strata manager to challenge its own appointment), but should not have been granted in unlimited and unconditional terms.

29. [103]

    Had the joinder of the Sarraf Property Group been limited to advancing an appeal only in relation to the Tribunal's decision to appoint the compulsory strata manager, then the compulsory strata manager (which was represented in the appeal by different solicitors to Sarraf Property Group and Palonis) could have made forensic decisions (for the benefit of the Owners Corporation as a whole) in relation to the conduct of the balance of the appeal without having to take into account, or be guided by, the competing and conflicting interests of the majority and minority lot owners.

30. [104]

    However, the Appeal Panel did not so limit the joinder of the Sarraf Property Group, but rather permitted them to be joined as plaintiffs with unlimited ability to advance an all grounds appeal for their own benefit (not for the benefit of the Owners Corporation as a whole), and without being required to provide any indemnity to the Owners Corporation with respect to the costs of the appeal. This was inconsistent with the principles referred to above (for example as summarised in Tan) to the effect that any derivative proceedings can only be brought for the benefit of the Owners Corproation as a whole.

31. [105]

    For the reasons set out above, the Appeal Panel erred, as a matter of principle and in law, in not limiting the joinder of the Sarraf Property Group in the manner submitted above.

32. [106]

    The Appeal Panel did not err in finding that Keevers had not appealed the Joinder Orders nor asked the Appeal Panel to revoke the Joinder Orders (Substantive Decision at [86]-[87]):

33. [107]

    These findings were open, are not infected with any legal error and no appeal right is engaged.

34. [108]

    In addition to its recitation of the procedural background (see [9] above), there are four Appeal Panel findings relevant to these appeal grounds:

    1. (1)

       It was the Owners Corporation under the control of the Sarraf Property Group parties, which pursued its claims at first instance to be paid contributions to the special levy and defended the claims for the appointment of a strata manager and for the variation of the special levy At the heart of the dispute was a dispute between the Sarraf Property Group parties, as majority lot owners, and the minority lot owners, including Keevers (Substantive Decision at [77]).

    2. (2)

       The appointment of a compulsory strata manager under s 237 of the SSM Act did not terminate the Owners Corporation's retainer of its solicitors who acted for it in the proceedings and who lodged the Notice of Appeal as representative of the Owners Corporation (Appeal Panel at [81])

    3. (3)

       Neither before Deputy President Westgarth nor the Appeal Panel did the plaintiff submit that the Owners Corporation's appeal was invalid and that as a consequence Deputy President Westgarth had no power to make an order for the joinder of any party (Appeal Panel at [84]).

    4. (4)

       Unless the compulsory strata manager chose to prosecute the appeal, or some means were put in place by which the majority lot owners could prosecute the appeal, no effective appeal right would exist in respect of the Tribunal's orders Plainly, the compulsory manager had a personal interest that was in conflict with prosecuting an appeal which challenged its appointment (Appeal Panel at [79]).

35. [109]

    Having regard to the above four findings and the procedural history concerning that joinder (see [10] above), Deputy President Westgarth did not make any error of law in making the Joinder Orders because

36. [110]

    The effect of the Joinder Order pursuant to s 44 of the NCAT Act joining the majority owners as plaintiffs was consistent with the approach taken by Robb J in Tan and the approach taken by Sackar J in Glenquarry Park Investments:

37. [111]

    Further, where at all times the Owners Corporation was a party to the appeal as plaintiff, Keevers does not demonstrate why the Deputy President’s discretionary order as to practice and procedure pursuant to s 44 of the NCAT Act was an error of law, let alone one justifying leave to appeal and an extension of time in which to bring that application:

38. [112]

    The short answer to this ground and Keevers submissions is that it was never submitted to Deputy President Westgarth or to the Appeal Panel at the substantive hearing that the Sarraf Property Group parties joinder should be for a limited purpose

39. [113]

    In those circumstances, they can hardly be criticised for not considering the matters now raised by Keevers on appeal in the exercise of the discretion pursuant to s 44 of the NCAT Act In the absence of having raised the matters before the Appeal Panel, Keevers cannot establish error, let alone satisfy the high burden lying on an applicant seeking leave to appeal from a discretionary judgment on a question of practice or procedure: see PPK Willoughby v Baird [2019] NSWCA 48 at [5] and the cases cited.

40. [114]

    In any event, even had the matters been raised, they would not have justified a limited joinder. As earlier stated, it would not have been appropriate to make such an order given the appeal in relation to the appointment of a compulsory manager turned upon an examination of the Tribunal's fact-finding in respect of its inter-related conclusions that the work the subject of the special levy went beyond that required by s 106 of the Strata Management Act and about the levy being struck for an improper purpose (Substantive Decision at [98]) In coming to its conclusion that the Tribunal erred in ordering a compulsory appointment, the Appeal Panel was required to investigate those matters (Substantive Decision at [104], [250]-[257]) It was neither appropriate nor practical to limit the Joinder Order in the way suggested by Keevers

Consideration of Rice Marketing Board and Fine v Commissioner of Police

1. [115]

   Both parties referred to Rice Marketing Board at the hearing. They were given leave to make short supplementary submissions as they considered it the guiding decision after I reserved my decision. I now have those submissions. The plaintiff relied upon Rice Marketing Board in support of its argument that the Deputy President had no power to join Sarraf Property Group and Palonis as parties to the appeal. The defendant relied upon Rice Marketing Board to support its argument that the Deputy President had power under s 44 of the NCAT Act to join Sarraf Property Group and Palonis to the Appeal.

2. [116]

   Before I consider Rice Marketing Board, I will refer to the decision of Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCA 327 (“Fine”). Fine was referred to in Rice Marketing by the Appeal Tribunal in its decision at [104]-[105]. In my view, Fine is more instructive and relevant to this appeal. The short facts are as follows. Mr Fine sought a review of an order in the Civil and Administrative Tribunal (the Tribunal). The Liqour and Gaming Authority (“the Authority”), which was joined as the only defendant and filed a submitting appearance. An application by the Commissioner of Police (“the Commissioner”) to be joined as a party was dismissed by the Tribunal. The Commissioner appealed to the Appeal Panel of the Tribunal, which dismissed his appeal. The Commissioner appealed to the Court of Appeal, which allowed the appeal and ordered, in lieu of the order of the Appeal Panel, that the Commissioner be joined as a party to Mr Fine's review application pursuant to s 44 of the NCAT Act.

3. [117]

   In Fine, the Court of Appeal (per Bathurst CJ, Beazley P and Ward JA) granted leave to appeal pursuant to s 83(1) of the NCAT Act on the basis that the matter raised an important question of law relating to practice and procedure of the Tribunal.

4. [118]

   At [28]-[29] and [34], the Court considered s 44 of the NCAT Act. It stated:

5. [119]

   At [35]-[41] the Court made its determination regarding s 44 of the NCAT Act:

Rice Marketing Board

1. [120]

   The short facts are as follows. The Rice Marketing Board decision involved a number of parties. The relevant party, for this appeal, is SunRice Marketing Board for the State of New South Wales (“Sunrice”). which was an ASX-listed company which held the sole and exclusive export licence to sell NSW grown rice outside Australia.

2. [121]

   Forbidden Foods (a ricegrower in Victoria) applied under the Government Information (Public Access) Act 2009 (NSW) (ie. the 'Freedom of Information' Act) for access to documents held by the Rice Growing Board ("the Board") relating to the Board's decision to grant SunRice the exclusive export licence to sell NSW rice outside of Australia. The Board gave access to some documents but refused access to the majority. Forbidden Foods then applied to NCAT to review the decision. NCAT gave Forbidden Foods access to more documents than the Board had earlier granted which led the Board to bring an appeal to the Appeal Panel against that decision.

3. [122]

   There were two issues that the Appeal Panel was required to deal with in relation to SunRice:

   1. (1)

      whether SunRice was entitled to commence its own appeal against the Tribunal's decision;

   2. (2)

      whether SunRice could be joined to the appeal brought by the Board and Forbidden Foods under s 44 of the NCAT Act.

4. [123]

   SunRice was an 'intervenor' in those initial proceedings before the Tribunal, pursuant to s 44(5)(b) of the NCAT Act.

5. [124]

   In Rice Marketing, the Appeal Panel stated at [23],[32]-[33]:

6. [125]

   The Appeal Panel continued at [63]-[65], [68] and [74]:

7. [126]

   At [99]-[1118] the Appeal Panel further explained:

8. [127]

   The plaintiff relies upon Rice Marketing Board in support of its argument that Deputy President Westgarth had no power under s 44 of the NCAT Act to join the Sarraf Property Group and Palonis as parties to the appeal in the Appeal Panel.

9. [128]

   The Rice Marketing Board decision does the opposite; it confirms that Deputy President Westgarth had the power to join the Sarraf Property Group and Palonis to the appeal validly brought by another party and exercised that power properly. It should be noted that Keevers does not attack the exercise of the power but only the existence of the power.

10. [129]

    Much of the relevant parts of the judgment of the Appeal Panel discuss the involvement, by SunRice, in the proceedings before the Tribunal. SunRice was an 'intervenor' in those proceedings. That gave it rights similar to being a party but, critically, SunRice was not a party in the Tribunal proceedings.

11. [130]

    There is much analysis in the Appeal Panel's decision of the GIPA legislation. None of that is relevant because there was no question that SunRice was not a party in the Tribunal proceedings even though it tried to argue that, in essence, it was a party. The Appeal Panel rejected that submission. And because the Appeal Panel found that SunRice was not a party, it dismissed the appeal that had been brought by SunRice.

12. [131]

    SunRice, no doubt as a backup plan, sought an order that it be joined to the Board's and Forbidden Foods' Appeal Panel appeal. It should be noted, at this juncture, that SunRice was in exactly the same position as the Sarraf Property Group parties before Deputy President Westgarth: they were not parties in the Tribunal proceedings.

13. [132]

    Despite that, the Appeal Panel considered that SunRice could be joined (ie. There was power under s 44 of the CAT Act to do so) and should be joined to the appeal brought by the Board and Forbidden Foods.

14. [133]

    At [23] the Appeal Panel pronounced its decision to grant SunRice's application to be joined under s 44(1)(a) to the proposed appeal.

15. [134]

    As to whether SunRice could commence its own appeal the Appeal Panel observed, at [132], that this depended on "whether SunRice was a party in the Tribunal proceedings below...". In concluding that SunRice was not a party, it followed that its appeal was incompetent.

16. [135]

    While SunRice could not commence its own appeal- in the same way that the Sarraf Property Group parties could not commence their own appeal- s 44 allowed them to be joined to an existing appeal. At [115], the Appeal Panel concluded:

17. [136]

    These proceedings were and are on all fours with the circumstances in the Rice Marketing Board case:

18. [137]

    Once it is accepted that Deputy President Westgarth had the power to join the Sarraf Property Group parties, in the same exercise of power made by the Appeal Panel in the Rice Marketing Board case, that is the start and end of the matter. How that power was exercised has never been the subject of this appeal.

19. [138]

    The Rice Marketing Board decision, which was handed down three or so months after Deputy President Westgarth's decision, demonstrates that Deputy President Westgarth acted within power.

20. [139]

    The defendants' supplementary submissions ignores the fact that in Rice Marketing the non-party which unsuccessfully sought to bring an appeal was only joined to the appeal as a party, not as an plaintiff. Consequently, Rice Marketing Board does not assist the defendants, nor does it establish that Deputy President Westgarth had the power to join Sarraf Property as plaintiffs to the appeal.

21. [140]

    The plaintiff does not rely on Rice Marketing Board to argue that the Deputy President had no power under s 44 of the NCAT Act to join Sarraf Property as parties to the appeal. The plaintiff relies on the decision as authority for the proposition that s 80 of the NCAT Act provides that a non-party to proceedings cannot bring an appeal and that therefore the Deputy President wrongly exercised the joinder power under s 44 by joining Sarraf Property as plaintiffs (not just as parties) to the appeal.

22. [141]

    In other words, the plaintiff relies on Rice Marketing Board to argue that the Deputy President had no power under s 44 of the NCAT Act to join Sarraf Property Group and Palonis as plaintiffs (rather than merely as parties) to the appeal. This is consistent with the primary challenge made to the Joinder Orders (Appeal Ground 1A) which was that the Appeal Panel erred, in law, in ordering that Sarraf Property and Palonis be joined to the appeal as additional plaintiffs.

23. [142]

    In Rice Marketing Board a non-party to the proceedings below, Sunrice, sought to bring an appeal in its own right. As is acknowledged, in Rice Marketing Board the Appeal Panel dismissed the appeal which Sunrice sought to bring on the basis that, as it was not a party to the proceedings below, it had no appeal rights and could not properly bring any appeal: see [32] and [74]. This is the same outcome which the plaintiff submits should have occurred in the present case, namely that the Deputy President should have declined to join Sarraf Property as plaintiffs because, as non-parties to the proceedings, they had no right of appeal (pursuant to s 80) and any appeal by them would be incompetent.

24. [143]

    It is noteworthy that the first to third defendants (still) do not dispute the plaintiff's fundamental submission, being the section 80 contention, namely that as non-parties to the proceedings below, they had no right or standing to bring any appeal (in their own right). Rice Marketing Board (especially the finding at [74]) is authority for that proposition (and principle). The corollary of this principle is that the Deputy President erred in exercising the joinder power because he joined plaintiffs parties who had no right to appeal.

25. [144]

    The defendant’s submissions (that SunRice was in exactly the same position as the Sarraf Property Group parties and that the present proceedings are on all fours with the circumstances in Rice Marketing Board) should be rejected for the following reasons.

26. [145]

    First, in Rice Marketing Board, in addition to seeking to run its own appeal, SunRice sought to be joined as a party (but not as an plaintiff) to two separate appeals which had been brought by plaintiffs who were parties to the proceedings below (namely the Board and Forbidden Foods): see [99]. These two appeals had already been fully pursued and argued, and there was no question of the Board or Forbidden Foods not pursuing their appeals, or that SunRice would participate in the appeals as an plaintiff, or would seek to exercise any right of appeal pursuant to s 80. This is quite different to the position of Sarraf Property Group and Palonis who were joined as plaintiffs (not just as parties) in order to be the primary (if not only) moving parties in the appeal and thereby exercise (non-existent) rights of appeal pursuant to s 80.

27. [146]

    Second, in Rice Marketing Board, SunRice (unlike Sarraf Property Group and Palonis) had been an active participant, and had led evidence, cross examined, and made oral and written submissions, in the proceedings below: see [63]. To the contrary, in the present case, Sarraf Property elected not to be joined to or participate in the proceedings below.

28. [147]

    Third, in Rice Marketing Board, the joinder of SunRice (as a party not as an plaintiff) was supported by one of the plaintiffs (the Board): see [102] rather than being opposed by the defendants to the appeal (as was the situation in the present case).

29. [148]

    Fourth, in Rice Marketing Board the Appeal Panel (unlike the Deputy President) undertook a thorough consideration (aided by considered written submissions) as to whether or not SunRice was a proper or necessary party in the appeal, and concluded that it was, as a party whose interests were affected by the Tribunal's decision and has a material interest in the result of the appeal proceedings: see [104]-[118]. With respect, no such analysis or findings were made in the present case.

30. [149]

    Fifth, the outcome in Rice Marketing Board was quite different to that in the present case in that Sunrice was not joined as an plaintiff in the appeal, but instead was only joined as a party.

31. [150]

    Contrary to the assertion, Keevers does challenge both the existence and the exercise of the power to join a non-party to the proceedings below to an appeal. This is obvious from those aspects of the plaintiff's written submissions which challenge the discretionary aspects of the joinder. From the inclusion of Ground 1B in the Amended Summons and PWS [74]-[79], given that by that ground of appeal and those submissions the plaintiff contended that, if the Appeal Panel did have the contested joinder power, then it erred in the exercise of that power (by failing to limit the scope of the joinder to only certain grounds of appeal).

32. [151]

    For the reasons set out above, the way in which the joinder power was exercised by the Deputy President was quite different to the way in which it was exercised in Rice Marketing Board. In the present case, Sarraf Property Group and Palonis were impermissibly joined as plaintiffs (in circumstances where the terms of s 80 meant they had no appeal rights and therefore could not be plaintiffs) while in Rice Marketing Board SunRice was (properly) joined merely as a party, not as an plaintiff.

33. [152]

    In these circumstances, the decision in Rice Marketing Board does not demonstrate that Deputy President Westgarth acted within power or otherwise assist Sarraf Property Group and Palonis. To the contrary, it indicates that, by joining Sarraf Property as plaintiffs (as opposed to merely as parties), he acted outside or erred in the exercise of the joinder power, and thereby fell into legal error.

34. [153]

    Contrary to the oral submissions put on behalf of Sarraf Property at the end of the hearing of this appeal, there would be substantial practical utility in granting leave and upholding this appeal (and in particular Ground 1A) because allowing the appeal would mean that the original orders of the Tribunal would be restored (other than the compulsory strata manager order) and appropriate orders would be made with respect to the (incompetent) appeal to the Appeal Panel. It is by no means certain, or even likely, that Sarraf Property would apply for, and/or be given, leave to be joined to the proceedings below in order to then bring a (competent) appeal from the Tribunal's orders. Any such application would be opposed and it is difficult to see on what basis it could or would be granted in circumstances where the reasons for any joinder (namely to challenge the order for compulsory strata manager) no longer exist.

35. [154]

    Starting with Fine, the Appeal Panel recognised, at [35], that s 44 of the NCAT Act conferred a wide discretion on the Tribunal in determining who ought to be joined to proceedings as a party. It considered that the discretion was similar to, but wider than, the discretion conferred under UCPR r 6.19. By reference to the "broad discretion" conferred by UCPR r 6.19, the Appeal Panel at [36] articulated the "basic principle" governing the exercise of the discretion under s 44 in the following terms:

36. [155]

    The Court of Appeal in Fine stated that the power of joinder conferred by s 44 of the NCAT Act is stated in general terms. It is a power to join a party "if the Tribunal considers the person should be joined as a party": s 44(1). The Tribunal also has the power to remove a party. The power of removal may be exercised if the person is "improperly or unnecessarily joined, or ... ceased to be a proper or necessary party": s 44(2). The power of joinder conferred by s 44(1) was to be read in conformity with the power of removal so that a party who was a "proper or necessary party" ought to be joined in the proceedings. However, the question remains as to the meaning or, perhaps more correctly, the parameters of the expressions "proper" and "necessary", noting that the expressions are used in s 44(2) disjunctively and that a "proper" party may not be a "necessary" party (at [38]).

37. [156]

    A party whose interests are affected by a decision, including by reference to a statutory interest, may be a necessary party to proceedings. For that reason, the decision-maker is usually joined as the decision made may be affected by the application. The intent and effect of the joinder is to ensure that the decision-maker is bound by the determination of the Tribunal (at [39]).

38. [157]

    The question whether a party is a "proper" party to an application raises different considerations. A party with an interest in the proceedings, that is, a party whose interests were affected by the decision, would usually be a proper party.” (at [40]).

39. [158]

    Turning to the current proceedings, the appeal to this Court is in reality an appeal against the decision of Deputy President Westgarth sitting as the Appeal Panel of 30 June 2021 when he ordered that Sarraf Property Group and Palonis be joined as parties to the proceedings. As reproduced in excerpts from the transcript earlier, at the hearing before Deputy President Westgarth, Mr Philips, appearing for Keevers, Bourke and Fardell, accepted that there was no contradictor in the appeal, if Sarraf Property Group and Palonis were not joined as parties. The Deputy President also stated that if the real interests are to be dealt with before the Appeal Panel, the different positions of the majority and minority owners can only be property ventilated by these two majority owners being added as parties.

40. [159]

    The Deputy President, in his ex tempore reasons, decided that what was relevant was that an appeal had been brought by an Owners Corporation, the officers of which had now been displaced by the appointment of a compulsory manager. In reality, those who wished to contest the orders under appeal were not the Owners Corporation nor the defendants to the appeal, but two other parties who are called the "majority owners." Deputy President Westgarth’s view was that the interests of justice require that they be added as additional plaintiffs. He added Sarraf Property Group and Palonis, as additional plaintiffs to the Appeal.

41. [160]

    Likewise, the Appeal Panel at [79] of its decision, stated that because of the effect of the appointment of the compulsory strata manager (provided for in the Strata Scheme Management Act) unless the compulsory strata manager chose to prosecute the appeal, or some means were put in place by which the majority lot owners could prosecute the appeal, no effective appeal right would exist in respect of the Tribunal’s orders. The compulsory strata manager had a personal interest that was in conflict with prosecuting an appeal which challenged its appointment. The Appeal Panel observed that no appeal from Deputy President Westgarth orders had been brought [APD [86]]. At [87], the Appeal Panel’s short answer to the defendants’ objection to the appeal on the basis that the Sarraf Property Group and Palonis plaintiffs have no standing is that the contrary position had already been determined by the decision made by the Deputy President on 30 June 2020. That decision was not appealed, and the defendants to that appeal were not suggesting that the Appeal Panel should revoke the interlocutory decision of the Deputy President by reason of a change of circumstances or other reason.

42. [161]

    It is my view that s 80 of the NCAT Act that deals with the making of appeals should not be read to exclude the exercise the specific powers set out in s 44(2) of the NCAT Act, one of which is to join parties. Section 82(1)-(2) of the Strata Schemes Management Act provides for the Owners Corporation to make an application to the Tribunal for recovery of unpaid contribution interest. The Owners Corporation made the application to the Tribunal. These submissions failed. The plaintiff also raised hypothetical derivative proceedings. The following exchange occurred by Senior Tribunal Member Durak with Counsel for Keevers, Bourke and Farrell: (CB417)

43. [162]

    This argument to me seems academic as Fine establishes that a party can be joined by in accordance with s 44 of the NCAT Act.

44. [163]

    So far as appeal ground 1B is concerned, s 44(2) of the NCAT Act gives a wide discretionary power to join parties. There is no reason that power for joinder of parties be limited, in circumstances where no such submissions of this nature were made before Deputy President Westgarth.

45. [164]

    In the event that I am wrong, these appeal grounds do not raise a matter of principle because in 2014 the Court of Appeal in Fine has already addressed the proper application of s 44(2) of the NCAT Act. There is no question of public importance. Nor is it reasonably clear that there has been an injustice in the sense of going beyond what is reasonable arguable.

46. [165]

    Appeal Grounds 1, 1A and 1B fail.

Appeal Grounds (2)(a) – procedural fairness

1. [166]

   This appeal ground is that the Appeal Panel erred, in law, in finding that the Tribunal at first instance made an error of law in the form of procedural unfairness by making findings (in [79] of its Reasons) described as "adverse" in circumstances where such findings were not advanced or sought by the plaintiff: see Reasons 1 [139]-[140].

2. [167]

   At [78]-[79], the Tribunal Member stated

3. [168]

   At [80]-[82] the Tribunal Member gave reasons as to why he did not accept the expert evidence of Mr O’Donnell and Mr Burner.

4. [169]

   At [132],[134]-[138] and [139]-[140], the Appeal Panel stated:

5. [170]

   In [79] of its primary reasons, the Tribunal Member found that the Dakhoul Report was consistent with an objective to arrive at a high amount in a report prepared for a friend who uses him for most of their work and is more interested in redevelopment than refurbishment.

6. [171]

   In [139]-[140] of its primary reasons, the Appeal Panel found that the Tribunal below had made an error of law because its findings in [79] of its reasons were "procedurally unfair". The basis for this finding was that procedural unfairness had been demonstrated to Dakhoul, Norman Sarraf and the Sarraf Property Group in circumstances where such "adverse" findings were not put to Norman Sarraf in cross examination and were not advanced in submissions to the Tribunal and therefore the Sarraf Property Group did not have an opportunity to address these matters. This finding was itself wrong, and an error of law, because:

7. [172]

   The Appeal Panel did not make the errors asserted by the plaintiff concerning the Appeal Panel's finding that there was procedural unfairness There were a number of secondary factual findings that informed the principal finding that procedural unfairness infected the findings concerning (at [140]) the Sarrafs (as witnesses), Dakhoul as a person available for cross-examination and to the Owners Corporation, as a party relying on their evidence.

8. [173]

   The first instance finding that Dakhoul had inflated his costings because of his association with the Sarrafs (at [79]) impeached the credit of Norman Sarraf and John Sarraf given that, implicit in such a finding, was that Norman Sarraf, John Sarraf or both had asked Dakhoul to act dishonestly, improperly and unprofessionally in the preparation of his report. The Appeal Panel properly described these findings as seriously adverse to Dakhoul and to Norman Sarraf (at [134]).

9. [174]

   The proposition, which was to the effect that Dakhoul had engaged in fraud at the Sarraf Property Group parties' request, was not put to Norman Sarraf or John Sarraf in cross-examination, which eviscerated the rules of fair dealing prescribed by Browne v Dunne (1893) 6 R 67 at [60] as affirmed in Kuhl v Zurich Financial Services Australia [2011] HCA 11; (2011) 243 CLR 361 at [71].

10. [175]

    The Appeal Panel's reference to the unfairness to the Sarraf Property Group having an opportunity to address the matters (at [139]) was, clearly enough, a shorthand reference to the Owners Corporation's witnesses John Sarraf and Norman Sarraf, who either through their evidence or by submissions put by the Owners Corporation, could have responded had they been given the opportunity.

11. [176]

    Further, the Owners Corporation served Dakhoul's report and made Dakhoul available for cross-examination after being required to do so by Keevers' solicitor (at [132]). In those circumstances, the Browne v Dunne (1893) 6 R 67 rule also applied to Dakhoul who could have been called by the Owners Corporation to address the allegations against him, had they been made.

12. [177]

    The Appeal Panel set out the submissions Keevers did make (at [137]), which concerned what Keevers described as the materiality of the defects identified in the Dakhoul report, not whether Dakhoul had dishonestly inflated his costings at the Sarrafs' request. The Owners Corporation had no opportunity to respond to that submission. The notion that a litigant can make allegations of collusion, favouritism, unethical behaviour and, in essence, fraud against witnesses, or persons who were available for cross-examination, but not confront them with such matters – which is what Keevers submits in this Court – is an affront to the concept of our system of justice.

13. [178]

    There were a number of expert reports relied upon by the parties. They had a disagreement on some costly matters such as differing views between them as to whether the roof membrane had to be replaced and adequacy of the damp courses.

14. [179]

    At the hearing before the Tribunal Member, Keevers Bourke and Fardell relied upon an expert report of Mr Magro. The Owners Corporation relied upon the report of Dakhoul. On appeal, the Appeal Panel was entitled to consider factual matters.

15. [180]

    I agree that, in order to afford procedural fairness, where a witness is made available for cross examination, as Dakhoul was before the Tribunal, he should have had specific allegations put to him in cross-examination before adverse findings were made against him. Dakhoul estimated the costs of fixing the defects in the strata building was 1,006,425.00. Magro estimated repair of the defects at $77,650.00. In my view, leave to appeal should not be granted as it is reasonable clear that there has not been an injustice in the sense of going beyond what was reasonable arguable that the Appeal Panel was in error. Nor does this ground of appeal raise issues of principle or questions of public importance.

Appeal Grounds 2(b)-(d) – findings of fact and evidence

1. [181]

   These grounds of appeal follow from what is raised in Gound 2(a) concerning the Dakhoul report. They are:

2. [182]

   Section 80(2)(b) of the NCAT Act permits the Appeal Panel to:

3. [183]

   The Appeal Panel stated:

4. [184]

   In [141] of its primary reasons, the Appeal Tribunal found that that there was no probative evidence to support the Tribunal's conclusion that the costs estimate in the Dakhoul report was inflated. This finding was wrong for the following reasons.

5. [185]

   First, the Tribunal identified (in [78] of its Reasons) 9 separate reasons (each grounded in or supported by evidence) as to why it considered that the Dakhoul Report was not a reliable basis for the 2017 Special Levies. In order to (properly) make a finding that there was no probative evidence to support the Tribunal's conclusion regarding the Dakhoul report, the Appeal Panel needed to demonstrate that each and every one of the 9 separate reasons identified by the Tribunal had no basis in evidence. This it did not do.

6. [186]

   Second, there was at least some probative evidence before the Tribunal (at [78(5)]) supported the Tribunal's conclusion [78(5)] that a number of Mr Dakhoul's costs estimates appeared to be high. For example, in relation to the $84,700 for work on the roof, there was evidence before the Tribunal (referred to at [153]) from the expert engineer Mr Magro that, in his opinion, it was not necessary to remove the roof membrane, and therefore that Mr Dakhoul's estimate (which relied on removing the newly installed membrane in order to do other work) for this item was excessive. Further, there was clear evidence before the Tribunal that there was no need for the capping of parapet walls (costed at $23,100 by Mr Dakhoul) to take place because that capping had been undertaken after Mr Dakhoul had issued his report (and therefore was no longer necessary): see [155].

7. [187]

   Third, the Appeal Panel's criticism of the Tribunal's conclusions in [78] of its reasons was, in substance, that there was an absence of findings, not a complete absence of any evidence to support the conclusion. For example, at [150] and [154] the Appeal Panel observed that the submissions of Keevers provided no answer to the absence of any findings by the Tribunal about the necessity of particular items of work. However, an absence of positive findings about particular items is a different thing to a (complete) absence of evidence - an absence of specific findings does not equate to a (complete) absence of any evidence.

8. [188]

   This is most starkly shown by the way in which the Appeal Panel approached the Tribunal's references to evidence at [78(6)-(7)] which demonstrated that, according to Mr Dakhoul's report and proposal, a total amount of $552,495 for building work became a total of $1,006,425 (once preliminaries, builder's margin, contingencies and GST had been added) and then a project management fee of $94,710 would be payable to Mr Dakhoul (if the work were to proceed). The Appeal Panel simply noted that there were no findings that these amounts were inflated or why that was the case. Significantly, it did not suggest that there was no evidence which could support such a finding (but rather only that no such finding was made, even though it could be argued that there was such a finding made, at least impliedly). The important matter is that there clearly was evidence before the Tribunal (in the form of Mr Dakhoul's own costs estimate, calculations and fee proposal) which it regarded as supporting its conclusion that the Dakhoul Report did not provide a reliable basis for the 2017 Special Levies.

9. [189]

   This erroneous approach is also demonstrated by the Appeal Panel's repetition at [160] that there was no finding by the Tribunal that identified matters were not urgent, which, again, does not entail a conclusion that there was no evidence to support such a conclusion. Tellingly, it is also repeated at AP Reasons [162] in relation to the evidence of the expert Mr Magro. As is recorded at AP Reasons 1 [164], Mr Magro gave expert evidence that in his opinion the schedule of defects is outdated as some of the major [components] have been rectified, and on the surface, the associated costs appear exorbitant. This evidence provides support for the Tribunal's conclusion with respect to the Dakhoul Report, and itself establishes that Appeal Panel was wrong to find that there was no evidence to support that conclusion, and also that such material was not capable of supporting that conclusion.

10. [190]

    The same must be said with respect to the finding at [168]-[169] that it was not open to conclude that the building work the subject of the 2017 Special Levies went beyond what was required by s 106 of the Strata Schemes Management Act, given that this finding was (erroneously) made for the same reasons.

11. [191]

    In summary with respect to Grounds 2(b)-(d), the Appeal Panel's findings that there was no probative evidence to support the Tribunal's conclusion that the costs estimate in the Dakhoul report was inflated, and that the material from Magro was not capable of supporting such a conclusion, were manifestly wrong and cannot be sustained. In their place, a finding should be made that it was open for the Tribunal to conclude that the costs estimate in the Dakhoul Report was inflated, and therefore that there was no error in the Tribunal reducing the 2017 Special Levies in the way that it did.

12. [192]

    The plaintiff challenges the Appeal Panel's finding that it was not open to conclude that the cost estimate in the 2017 Dakhoul Report was inflated "because there was no probative evidence” supporting that conclusion This is an attack on the Appeal Panel's assessment of facts. No legal error exists These appeal grounds should be rejected at the outset the plaintiff has not demonstrated any error in the Appeal Panels conclusion that there was "no probative evidence” to justify the Tribunal's conclusion that the cost estimate in the 2017 Dakhoul report was inflated, or that there “was no probative evidence” that the works the subject of the special levy went beyond s 106 of the Strata Schemes Management Act. The matters raised by the plaintiff involve no issues of principle, questions of general public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable.

13. [193]

    The "9 separate reasons" said by the plaintiff to support the Tribunal's finding were each separately considered and rightly rejected by the Appeal Panel (at [143]-[166]).

14. [194]

    In relation to Tribunal's reasons:

15. [195]

    The plaintiff seeks to rely on Magro's evidence to assert that there was some probative evidence to support the Tribunal’s conclusion that Dakhoul's costs estimates "appear to be high" in relation to the removal of the roof membrane and the capping of the parapet walls (Tribunal's reason 78(5)). However, this evidence was expressly considered and rejected by the Appeal Panel (at [153]-[156], [163]-[166]) as not being "capable of supporting a conclusion that the cost estimate in the 2017 Dakhoul report was inflated” (at [166]):

16. [196]

    Contrary to the plaintiff’s submission, the Appeal Panel’s criticism of the Tribunal's conclusions, at [78], was not because of a "(complete) absence of evidence".

17. [197]

    This is not a phrase used by the Appeal Panel although the Appeal Panel did rely on an absence of findings that the costings in the 2017 Dakhoul reports were inflated and why that was the case, it also found that there was "no probative evidence" for the conclusion that the cost estimate was inflated (at [141]). In particular:

18. [198]

    The matters referred to by the Tribunal (Tribunal's reasons at [78(6)-(7)] about the quantum of amounts in the 2017 Dakhoul report for such matters as preliminaries, builder's profit, GST and a fee proposal for Project Management were not, as submitted by the plaintiff, evidence that those amounts were inflated, let alone "probative evidence'. As the Appeal Panel observed, the Tribunal made no findings that these amounts were inflated or why that was the case (at [158]). That is unsurprising given there was no evidence that could have supported such a finding.

19. [199]

    The plaintiff’s assertion that the Appeal Panel erred by observing that there was no finding that works were urgent (Substantive Decision at [160]) is misconceived:

20. [200]

    Beyond assertion, the plaintiff does not identify any "probative evidence" which supports his contention that the Appeal Panel erred in finding (at [168]) that it was not open to conclude that the building work the subject of the 2017 Special Levies went beyond that which was required by s 106 of the Strata Schemes Management Act.

21. [201]

    As stated by the Appeal Panel (at [120]), the Haldezos "concession" was one of the few matters that might have conceivably justified the Tribunal’s positive conclusion that works went beyond s 106 of the Strata Schemes Management Act, however it was not in fact a "concession' for the Appeal Panel’s reasons at [120]-[126] and [144].

22. [202]

    The only other conceivable matters, were the damp course work and the roof membrane removal, which did not support the Tribunal s conclusion:

23. [203]

    The Appeal Panel was entitled to make their own factual findings based on the material that was before the Tribunal. The Tribunal Member concluded that the Dakhoul report inflated the costings. The Appeal Panel pointed out that some of the costings related to repairs of defects that had been carried out after the date of the report.

24. [204]

    Further, the Appeal Panel stated that the Tribunal Member had made findings related to deficiencies in the Magroo report which was a “Preliminary inspection” and stated it was for “discussion purposes only”. While Margo correctly said that some of the schedule of defects had been rectified, he expressed the view that on the surface, the associated costs appear exorbitant but then acknowledged that “this area is outside my expertise”.

25. [205]

    Magro strongly recommended that a new schedule be compiled and costed by an experienced remedial works investigator. Nevertheless, the Tribunal Member relied on Magro’s sums as a basis for the amount of levies to be paid by the unit owners. It is not correct, as the plaintiff contends, that the Appeal Panel had to overturn all nine findings in order to reach a different result. The Appeal Panel also referred to matters concerning the quantum of amounts in the 2017 Dakhoul report for such matters as preliminaries, builder's profit, GST and a fee proposal for Project Management were not, as submitted by the plaintiff, evidence that those amounts were inflated, let alone “probative evidence” (Tribunal's reasons at [78(6)] and [78(7)]). As the Appeal Panel observed, the Tribunal made no findings that these amounts were inflated or why that was the case (at [158]).

26. [206]

    It is my view that leave to appeal these grounds of appeal should not be granted as it is reasonably clear that there has not been an injustice in the sense of going beyond what was reasonable arguable that the Appeal Panel was in error. Nor does this ground of appeal raise issues of principle or questions of public importance.

Appeal Ground 3 – an attack on the Appeal Panel’s findings that some first instance findings were infected with factual error

1. [207]

   I will deal with appeal grounds 3(a) and 3(b) together.

2. [208]

   The grounds of appeal are that the Appeal Panel erred in law in:

3. [209]

   The Tribunal Member stated at [63] and [108]:

4. [210]

   In relation to these grounds, the Appeal Panel stated at [193]-[222]:

5. [211]

   At [217], the Appeal Panel found that the Tribunal's conclusion preferring the evidence of Casabon and Keevers over that of Norman Sarraf was impugned by material errors of fact (and accordingly upheld ground 6 of the appeal which was that the Tribunal had erred in so preferring). However, the Appeal Panel did not identify the "material errors of fact" to which it was referring. Nor did it, in the preceding paragraphs of its reasons where it addressed this ground (at [193]-[217]) identify (at least with any precision) any such material errors of fact. In so doing, the Appeal Panel itself fell into error.

6. [212]

   In its Reasons at [44], the Tribunal set out reasons why it preferred the evidence of Casabon and Keevers to that of Norman Sarraf. This was not a general finding as to the reliability or otherwise of Norman Sarraf as a witness. Rather it was a limited finding with respect to the relative reliability of the evidence of Casabon and Keevers on the one hand, and Norman Sarraf on the other. This was of significance only because there was a dispute on the evidence as to precisely what was said by Norman Sarraf during the February 2018 meeting.

7. [213]

   Of the 6 reasons given by the Tribunal at [44] of its reasons, those numbered (1) and (4) were not referred to, and were left undisturbed, by the Appeal Panel. Thus, there remain undisturbed findings by the Tribunal that: (i) Norman Sarraf’s evidence was recollection unaided by any contemporaneous record and contained a concession that he could not recall specifics of the conversation; and (ii) the evidence of Casabon and Keevers was not diminished in cross-examination. These two matters alone provide an ample and proper basis for the Tribunal to conclude (as it did) that the evidence of Casabon and Keevers as to what was said during the February 2018 meeting should be preferred to that of Norman Sarraf.

8. [214]

   In assessing the respective reliability of the evidence of the witnesses before it, the Tribunal found (Tribunal reasons at [31]) that when questioned about an SMS message he had exchanged with Bourke, Norman Sarraf sought to deflect the question by suggesting he sends 3000 message per day which was plainly an exaggeration. The passage of the transcript of the cross examination of Norman Sarraf is set out at [203].

9. [215]

   An appellate tribunal should be reluctant to disturb findings of fact (especially those related to the credit or respective reliability of witnesses who have given oral testimony) by the tribunal at first instance which has had the advantage of observing the demeanour and candour of the witnesses. Trial by transcript can seldom be an adequate representation of an oral trial before a first instance tribunal.

10. [216]

    Notwithstanding these well-established principles, the Appeal Panel usurped the role of the Tribunal as the trier of fact, and (at [204]) found that Norman's Sarraf’s reference to sending 3000 messages per day was not (as the Tribunal had found) an attempt to deflect a question and plainly exaggerate the true position, but instead was an "obvious and inconsequential exaggeration". In so finding, the Appeal Panel, aided solely by the transcript, but with no appreciation of the overall context of the particular evidence or the precise tone used by the witness in answering the question, was at a distinct disadvantage to the Tribunal, and ignored the warnings referred to above with respect to the reluctance which should be shown before any appellate interference occurs with respect to factual findings at first instance based (entirely) on oral testimony.

11. [217]

    In any event, even on the face of the transcript alone, the Appeal Panel erred by finding that the reference by Norman Sarraf to 3000 text messages was an "inconsequential exaggeration”. The Tribunal found (at [31]) that in giving the answer, Norman Sarraf was not only plainly exaggerating but was seeking to deflect the question. The Appeal Panel's reasoning at [204] does not identify any (proper) basis for it to overturn the Tribunal's finding, especially bearing in mind the advantages enjoyed by the Tribunal in assessing the live witnesses giving viva voce evidence to it.

12. [218]

    At [108] of its Reasons, the Tribunal made 18 separate findings of fact upon which it based its ultimate finding (at [109]) that the 2017 Special Levy was imposed for an improper purpose (namely to put pressure on the minority lot owners to sell their lots to the majority lot owners in order to facilitate a redevelopment of the property).

13. [219]

    At [219], the Appeal Panel found that the Tribunal's improper purpose conclusion was undermined because it was supported by the finding that Norman Sarraf said at the February 2018 meeting that the renovation work would never be carried out and by errors of law concerning the conclusions that the works (and concomitant costs) the subject of the 2017 Special Levies went beyond what was required by s 106 of the Strata Schemes Management Act. The Appeal Panel erred in coming to this conclusion.

14. [220]

    The Appeal Panel was also in error in finding (in effect) that, even if the Tribunal had made an error in preferring the evidence of Casabon and Keevers over Norman Sarraf about what was said at the February 2018 meeting, there were not sufficient additional unchallenged findings to support the Tribunal's conclusion with respect to improper purpose. This was because there were sufficient unchallenged findings made by the Tribunal which supported the ultimate improper purpose finding.

15. [221]

    Of the 18 separate findings of fact made by the Tribunal Member (Appeal Panel reasons at [108]), 12 of them were not challenged on appeal and remained as ample support for the Tribunal's ultimate conclusion as to improper purpose. These findings included the following:

16. [222]

    At the Tribunal’s Reasons at [63], the Tribunal also found (based on 5 matters, only one of which was the subject of any challenge) that the objective of the Sarraf property Group was to acquire all four units, dismantle the strata scheme and redevelop the site, which remains an underlying motivation. This finding was not challenged before, or disturbed or subject to any adverse comment by, the Appeal Panel.

17. [223]

    Consequently, notwithstanding the Appeal Panel's findings with respect to the evidence in relation to the 2018 February meeting, there remained twelve unchallenged findings which supported the Tribunal's ultimate finding with respect to improper purpose.

18. [224]

    At [222], the Appeal Panel found that these findings left open the prospect that at the time the 2017 Special Levies were struck, the Sarraf Property Group, whilst keen to acquire the lots of Keevers and Bourke and prepared to exert pressure on them to sell, intended to cause the Owners Corporation to carry out the works (if the special levy contributions were paid and the defendants did not sell). This finding is at odds with, and is undermined by and cannot stand with, the remaining unchallenged findings of the Tribunal referred to above. Further, in and of itself this finding is internally inconsistent.

19. [225]

    The Appeal Panel could not, with any consistency or coherence, find on the one hand that the Sarraf Property Group were keen to acquire the other lots and exert pressure on their owners to sell, and accept that their intention was to dismantle the strata scheme and redevelop the site, and on the other hand, intend to carry out the works the subject of the special levies (if they were paid), when armed with the knowledge that the special levies would be challenged and would not be paid by Keevers and could not be paid by Bourke.

20. [226]

    The Appeal Panel's findings at [222] were completely at odds with both the remaining unchallenged findings as to the intentions and conduct of the Sarraf Property Group and the weight of the evidence, and cannot stand. If that finding is set aside, then the further findings (at [223]-[224]) that there was a prospect that there was no improper purpose should also be set aside. This would mean that the Tribunal's ultimate finding with respect to improper purpose (at [109]) should be restored.

21. [227]

    The plaintiff attempts to overturn the Appeal Panel’s conclusions concerning factual matters, namely, that the Tribunal's conclusions about preferring the evidence of Casabon and Keevers to that of Norman Sarraf was impugned by material errors of fact. Being exclusively a factual matter this was a matter on which the Appeal Panel granted leave to appeal. Pursuant to s 83 of the NCAT Act, the Supreme Court does not have jurisdiction to grant leave in relation to alleged factual errors.

22. [228]

    The plaintiff has no right to seek leave to appeal in relation to this ground. It should be dismissed. The plaintiffs reliance on Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 and Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18 (plaintiff’s submissions at [100]-[101]), illustrates that this ground of appeal relates to alleged factual errors, for which no appeal lies.

23. [229]

    In any event, the plaintiff's submissions have no merit:

24. [230]

    In any event, given the hearing was by way of telephone, the Appeal Panel had a recording of the evidence before them, and the Tribunal's findings were not expressed to be demeanour based, the Appeal Panel was in the same position as Tribunal to make factual determinations.

25. [231]

    Ground 3(b) does not raise any error of law. It seeks to overturn the Appeal Panel's factual finding that the Tribunal was wrong it its finding that the 2017 Special Levy was imposed for an improper purpose. This was based upon the Appeal Panel's finding that the Tribunal made factual errors concerning (a) Norman Sarraf’s evidence, (b) that the building works the subject of the special levy went beyond what was required by s 106 of the Strata Schemes Management Act, and (c) that the estimated costs of the works were more than was reasonably required (Substantive Decision at [219]).

26. [232]

    The Appeal Panel's conclusions in relation to each of those matters was correct for the reasons previously given.

27. [233]

    The plaintiff's remaining submissions that the Appeal Panel's findings were internally inconsistent and at odds with other findings of the Tribunal (plaintiff’s submissions at [106]-[111]) are all quintessential factual matters.

28. [234]

    In any event, those were matters relied upon by Keevers before the Appeal Panel, they were considered by the Appeal Panel and the Appeal Panel disagreed with them as the Appeal Panel stated:

29. [235]

    The substance of the plaintiff's submissions is that its factual submissions before the Appeal Panel should have been accepted but were not. That does not demonstrate error, let alone a legal error and the plaintiff's misconceived application for leave to appeal in relation to ground 3(b) should be dismissed.

30. [236]

    These grounds of Appeal are essentially factual disputes that were ventilated before the Appeal Panel. The Appeal Panel disagreed with some factual findings made by the Tribunal member and provided reasons as to why. According to the Appeal Panel, some of these incorrect factual findings concerned critical aspects of the improper purpose conclusion. In essence, the plaintiff disagrees with the Appeal Panel’s findings. The Appeal Panel is entitled to disagree with specific findings, and conclude that they infected the Tribunal’s decision as to improper purpose. Even if the Appeal Panel is wrong on these factual matters, they are not matters that be dealt with on an appeal to this Court as it is limited to a question of law, if leave to appeal were to be granted. Further, even if this Court could intervene, they are not matters which satisfy the test that leave to appeal should be granted.

31. [237]

    It is my view that leave to appeal these grounds of appeal should not be granted as it is reasonably clear that there has not been an injustice in the sense of going beyond what was reasonable arguable that the Appeal Panel was in error. Nor does this ground of appeal raise issues of principle or questions of public importance.

Appeal Ground 4 – costs of the appeal

1. [238]

   In Appeal Ground 4, the plaintiff contends that the Appeal Panel erred in finding and ordering that the plaintiff achieved substantial success in the appeal and that the plaintiff should pay their costs of the appeal below.

2. [239]

   The Appeal Panel ordered at (6) that the second defendants are to pay the plaintiff’s costs of appeal. It also set aside the orders made by the Tribunal concerning costs. The Appeal Panel ordered that the second defendants are to pay the plaintiff’s costs below. In the Appeal Panel’s costs decision, it stated at [29]-[33] (CB 158-159):

3. [240]

   In their Amended Notice of Appeal, the relief sought by the Sarraf Property Group was that the application brought by Keevers (and Bourke and Fardell) should be dismissed and, in the debt recovery proceedings, that all orders sought by the Owners Corporation (that is judgment against Keevers and Bourke and Fardell for the full amount of the 2017 Special Levies) be made: see para 5 of Amended Notice of Appeal.

4. [241]

   None of this relief was granted by the Appeal Panel which instead set aside the orders of the Tribunal (except for those reducing the 2017 Special Levies from $980,000 to $80,000) and remitting the whole of all proceedings to a differently constituted Tribunal for redetermination. This outcome was not within the scope of the relief sought by the Sarraf Property Group.

5. [242]

   In these circumstances, Keevers submitted (for the reasons that are summarised at [28] of the costs decision) that there were several factors which militated against the Sarraf Property Group being awarded their costs of the appeal. Nevertheless, the Appeal Panel ordered that Keevers pay the Sarraf Property Group costs of the appeal. In ordering, the Appeal Panel found that:

6. [243]

   These findings were erroneous for the following reasons.

7. [244]

   First, it was incorrect for the Appeal Panel to find that the defendants before it did not succeed in upholding any aspect of the Tribunal's orders. To the contrary, as a matter of substance, the Appeal Panel upheld the practical effect of the Tribunal's orders in that the 2017 Special Levies were reduced from $980,000 down to $80,000 (and made any further aspects of the 2017 Special Levies subject to a further hearing and redetermination by the Tribunal). Such an outcome was what, in substance, Keevers was seeking to achieve in the proceedings he was bringing and was at odds with the relief sought by the Sarraf Property Group in the appeal (which was judgment against Keevers).

8. [245]

   Second, having correctly found that the outcome of the appeal was "mixed", the Appeal Panel should not have gone on to find that the Sarraf Property Group achieved substantial success in the appeal. This is because the Sarraf Property Group did not achieve any, or most, of the relief sought in the appeal. In particular, they were unsuccessful in obtaining a judgment against Keevers. The substantive relief which the Sarraf Property Group apellants did achieve (namely the remittal of the proceedings to a new Tribunal) was not something which they had sought in the appeal.

9. [246]

   Third, in circumstances where: (i) the outcome of the appeal was "mixed", and the substantive relief granted on appeal was a remittal for further determination (giving rise to the possibility that Keevers may succeed, and the Owners Corporation (and Sarraf Property) may fail, in relation to the proceedings as a whole; and (ii) the Sarraf Property Group were joined as plaintiffs having elected not to participate in the proceedings below, the appropriate and proper exercise of the Appeal Panel's discretion with respect to costs entailed an outcome either that each party to the appeal should bear its own costs of the appeal or alternatively that the costs of the appeal should abide the outcome of the remitted proceedings.

10. [247]

    The plaintiff’s submissions concerning costs concern factual contentions, which were made to and rejected by the Appeal Panel. Neither the plaintiff’s appeal nor his submissions raise any error of law, let alone an error of law that would justify the Supreme Court granting leave to appeal in relation to the costs. Keevers would need to identify a House v The King [1936] HCA 40; 55 CLR 499 error. He has not.

11. [248]

    Even if the plaintiff were able to establish a legal error in the Appeal Panel’s discretionary decision, leave to appeal ought not be granted given the use of court resources. Appeals as to costs alone must be scrutinised closely to determine whether such a use of resources is in the public interest: see Huang v Attapallil & Ors [2017] NSWCA 181, Corcoran v Far [2020] NSWCA 140 at [23].

12. [249]

    In any event, the Appeal Panel did not make the factual errors asserted by Keevers:

13. [250]

    In essence, the plaintiff repeats his submissions made before the Appeal Panel, and asks this Court to re-exercise the costs discretion in its favour. The plaintiff has not demonstrated any error, let alone any error of law.

14. [251]

    This ground can briefly be dealt with here. Costs are discretionary. The Appeal Panel, in its costs decision at [29]-[35] provided detailed reasons as to why they made the decision about who should pay the costs of the hearing before the Tribunal Member. At [31], the Tribunal Member stated that while it may be appropriate to characterise the outcome as a “mixed” outcome in the sense that the Sarraf Property Group did not obtain all that it sought on the appeal or succeeded on all issues that were put, that they regarded the Sarraf Property Group as achieved substantial success in the appeal. The Appeal Panel also provided persuasive reasons, the main one being that Sarraf Property Group and Palonis succeeded in having all the orders made by the Tribunal which they challenged overturned (at [31]).

15. [252]

    It is my view that leave to appeal should not be granted with regards to these appeal grounds as to costs, as it is reasonably clear that there has not been an injustice in the sense of going beyond what was reasonable arguable that the Appeal Panel was in error. Nor do these grounds of appeal as to costs raise issues of principle or questions of public importance.

Result

1. [253]

   After carefully examining the plaintiff’s grounds of appeal in detail, in my reasoning of each appeal ground and then taking an overall appraisal of the cumulative effect of the Appeal Panel’s reasons, I am not satisfied that the appeal raised an injustice in the sense of going beyond what is reasonably arguable that the Appeal Panel was in error. The appeal grounds do not raise any matters of principle nor do they raise any questions of public importance. Leave to appeal is refused. The result is that the plaintiff’s application of appeal fails. The summons is to be dismissed.

2. [254]

   The result is that leave to appeal is refused. The amended summons dated 26 October 2021 is dismissed.

Costs

1. [255]

   Costs follow the event. The plaintiff is to pay the defendants costs of this Appeal.

   1. (1)

      Leave to appeal pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) is refused.

   2. (2)

      The amended summons filed 26 October 2021 is dismissed.

   3. (3)

      The stay orders made on 8 July 2022 in this Court are dissolved.

   4. (4)

      The plaintiff is to pay the defendants’ costs.