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

1. [1]

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

2. [2]

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

3. [3]

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

4. [4]

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

Procedural Background

1. [5]

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

2. [6]

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

3. [7]

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

4. [8]

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

5. [9]

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

6. [10]

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

7. [11]

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

8. [12]

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

9. [13]

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

10. [14]

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

11. [15]

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

12. [16]

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

The 27 October 2022 Decision

1. [17]

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

2. [18]

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

3. [19]

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

4. [20]

   The Appeal Panel added at [48] that:

5. [21]

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

6. [22]

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

7. [23]

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

   1. (1)

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

   2. (2)

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

8. [24]

   As to these competing positions the Appeal Panel held:

9. [25]

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

10. [26]

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

11. [27]

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

Draft notice of appeal

1. [28]

   The draft notice of appeal relies upon the following grounds:

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

1. [29]

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

2. [30]

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

3. [31]

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

4. [32]

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

5. [33]

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

6. [34]

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

7. [35]

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

8. [36]

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

9. [37]

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

10. [38]

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

11. [39]

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

12. [40]

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

13. [41]

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

14. [42]

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

15. [43]

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

16. [44]

    Section 38 of the Tribunal Act includes provision that:

17. [45]

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

18. [46]

    Section 63 provides:

19. [47]

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

20. [48]

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

21. [49]

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

22. [50]

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

23. [51]

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

24. [52]

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

25. [53]

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

26. [54]

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

27. [55]

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

28. [56]

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

29. [57]

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

30. [58]

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

31. [59]

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

32. [60]

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

33. [61]

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

34. [62]

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

35. [63]

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

36. [64]

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

37. [65]

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

38. [66]

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

39. [67]

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

40. [68]

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

41. [69]

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

42. [70]

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

43. [71]

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

44. [72]

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

45. [73]

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

46. [74]

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

47. [75]

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

48. [76]

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

49. [77]

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

50. [78]

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

51. [79]

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

52. [80]

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

53. [81]

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

54. [82]

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

55. [83]

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

56. [84]

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

57. [85]

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

58. [86]

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

59. [87]

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

60. [88]

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

61. [89]

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

62. [90]

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

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

1. [91]

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

2. [92]

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

3. [93]

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

4. [94]

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

5. [95]

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

6. [96]

   Section 62 relevantly included the following:

7. [97]

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

8. [98]

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

9. [99]

   It can be seen that the amendments introduced by the 2002 Amending Act limited the definition of a caretaker to a person who was entitled to exclusive possession (whether or not jointly with others) of a lot or common property. Thus, after those amendments, the 1996 Act regulated caretaker agreements only to the extent that this requirement was met.

10. [100]

    The 2002 Amending Act also amended the 1996 Act to introduce s 183A, which conferred power on the Tribunal to terminate a caretaker agreement (albeit that by reason of the definition of a caretaker agreement this only applied where the caretaker was entitled to exclusive possession of a lot or common property in the strata scheme). Section 183A provided:

11. [101]

    Section 183A was added to Div 1 “Matters for which orders may be made by Tribunal” of Pt 5 “Orders of Tribunal” of the 1996 Act. Within Pt 5 were a range of provisions governing the Tribunal’s power, including on an application under s 183A. What is apparent from the terms of s 183A, however, is that the Tribunal’s powers to make orders under that section were enlivened by an application made under that section on one or more of the grounds set out in s 183A(2).

12. [102]

    Transitional provisions in the 2002 Amending Act introduced Pt 4 into Sch 4 of the 1996 Act, Clause 12 provided:

13. [103]

    By reason of cl 12, from 10 February 2003, the Caretaker Agreement became a caretaker agreement under the 1996 Act, subject to the provisions in cl 12(2)(b) and (c), namely that the provision in s 40B(2) that led to a caretaker agreement terminating 10 years from the date it commenced did not apply to it, and there was no power in the Tribunal under s 183A to grant an application for an order relying upon the period for which the agreement was in force being harsh, oppressive, unconscionable or unreasonable. Both the Appeal Panel (in the 27 Oct 2022 Decision at [57]) and the Tribunal at first instance: at [278], made findings to this effect.

14. [104]

    In the second reading speech for the Bill that became the 2002 Amending Act, the Minister stated: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 October 2002 at 6180:

15. [105]

    As regards what became s 183A of the 1996 Act, at 6181 the Minister said:

16. [106]

    In ACPM at [332] Bathurst CJ said that:

17. [107]

    The 2015 Act took effect from 30 November 2016, making significant alterations to the scheme of regulation of caretakers and strata management agents. By s 275 of the 2015 Act the 1996 Act was repealed.

18. [108]

    The 2015 Act introduced the terminology of “building manager”. In s 4 each of “building manager” and “building manager agreement” are defined by reference to, respectively ss 66 and 67 of the 2015 Act. These sections provide:

19. [109]

    As is readily apparent from s 66(4), a building manager could, but did not necessarily have to, be a person who was entitled to exclusive possession of a lot or common property in a strata scheme. This was a significant expansion beyond the position under the 1996 Act, where only agreements in respect of caretakers that had such entitlement were regulated.

20. [110]

    The 2015 Act regulates the term of a building manager agreement in s 68:

21. [111]

    The 10 year limitation on the period of a building manager agreement, by virtue of the definition of a building manager, thus for the first time impacted agreements where the caretaker, or building manager, did not have a right to exclusive possession of a lot of common property in the strata scheme.

22. [112]

    The functions of an owners corporation under the 2015 Act include the management of the strata scheme: s 9(1), and maintaining and repairing the common property for the strata scheme: s 9(3)(c). In s 12(1), the 2015 Act also retains an equivalent to s 13 of the 1996 Act, namely the power to “employ such persons as it thinks fit to assist in the exercise of any of its functions”.

23. [113]

    Section 72, pursuant to which the application by the OC to the Tribunal was made in this case, provides as follows:

24. [114]

    As is apparent from its terms, s 72 adds additional grounds to those available under s 183A of the 1996 Act and confers some additional powers on the Tribunal as regards agreements appointing building managers. It also expands the Tribunal’s jurisdiction to encompass agreements appointing strata managing agents: cf s 183A of the 1996 Act.

25. [115]

    Schedule 3 to the 2015 Act contains transitional provisions. Clause 1 provides a general power for regulations to contain transitional provisions. No such regulations were relied upon by either party before this Court.

26. [116]

    Schedule 3, cl 3, relied upon by the OC in support of its submission that s 72 could be invoked in respect of the Caretaker Agreement, provides that:

27. [117]

    Also of significance is Sch 3, cl 15:

28. [118]

    The Explanatory Note to the Strata Schemes Management Bill 2015 (NSW) relevantly states that:

29. [119]

    The Caretaker submits that the effect of Sch 3, cl 15 of the 2015 Act is to exclude the Caretaker Agreement from the ambit of the 2015 Act given that a right to exclusive possession of the Caretaker Lots was conferred thereby. Further, Sch 3, cl 3 should not be construed in a manner inconsistent with cl 15. The Caretaker submits that in ACPM it was held that a pre-existing caretaker agreement where the caretaker has a right of exclusive possession to a lot or common property in the strata scheme does not fall within either cl 3 or cl 15 of Sch 3 to the 2015 Act. Thus, the Caretaker submits, any right in the Tribunal to terminate the Caretaker Agreement must be found in s 183A of the 1996 Act, as preserved by s 30 of the Interpretation Act.

30. [120]

    By contrast, the OC contends that the effect of Sch 3, cl 15 of the 2015 Act is to bring pre-existing building manager or caretaker agreements within the definition of a “building manager agreement” in the 2015 Act where the agreement did not confer a right to exclusive possession of a lot or common property in the strata scheme, but not to exclude those such as the Caretaker Agreement that did confer such a right. The OC submits Sch 3, cl 3 has the effect that the Caretaker Agreement is regulated by the 2015 Act and that the Tribunal therefore has power under s 72 to make orders in respect of the Caretaker Agreement. This is because the appointment of the Caretaker was an act, matter or thing done under the 1996 Act which had force under that Act and is therefore taken to have been done under the 2015 Act.

31. [121]

    The OC submits that if the intention of Parliament in the 2015 Act had been to abrogate any right in the Tribunal to make orders as regards building manager or caretaker agreements entered into prior to 30 November 2016 where there was no right to exclusive possession, it would have been expected that this would have been identified in the Explanatory Notes.

32. [122]

    Section 30 of the Interpretation Act, relied upon by the Caretaker as set out above at [119], relevantly provides that:

33. [123]

    The application of s 30 to legislative provisions empowering bodies, in that case the Industrial Relations Commission, to make orders in respect of contracts was considered by this Court in Colley v Futurebrand FHA Pty Ltd (2005) 63 NSWLR 291; [2005] NSWCA 223 (“Colley”). That case concerned a claim for relief under s 106 of the Industrial Relations Act 1996 (NSW) in respect of an allegedly unfair termination of a contract. The contract was dated 15 May 2002 and the termination occurred on 18 March 2003. One issue arising was whether relief could be granted under s 106 of the Industrial Relations Act in light of an amendment, which took effect on 24 June 2002, inserting s 108A into the Act. This provided that an application “cannot be made for an order under this Division if the application relates to a contract of employment under which” the remuneration exceeded a statutory cap. It was common ground that if s 108A applied to contracts made before its commencement it would preclude the Industrial Relations Commission from having jurisdiction on the claimant’s application.

34. [124]

    One of the claimant’s arguments relied upon s 30 of the Interpretation Act. As to this, Handley JA, with whom Giles JA agreed (Mason P holding that “the nature of the power exercised under s 106 … is inconclusive as to the retrospectivity issues”: at [3]), held that s 106 did not confer defined rights on a party but did no more than “confer jurisdiction on the Commission to grant particular relief”: at [13]. Handley JA distinguished between “a mere right to take advantage of the section” and a “legally enforceable right to have the Commission hear and determine the application according to law”: at [31]. Handley JA also characterised a right to apply for relief as regards an unfair contract as “not a right or entitlement” which “automatically accrues or is acquired on an event such as unfair dismissal the injurious affection of land, the giving of notice to quit, or an illness causing a specific disability” (citations omitted): at [32].

35. [125]

    Until an application was made under s 106 the right under that section was properly characterised as “a mere right to take advantage of the section” or “an abstract rather than a specific right”: at [33]. Thus, the right was not an accrued right falling within the ambit of s 30(1)(c) of the Interpretation Act: at [34].

36. [126]

    In ACPM three agreements had been entered into between ACPM, the caretaker who also was the owner of a lot in the strata scheme, and the owners corporation. The first was in March 2001 with a term of 10 years with three options to renew of five years each. There were then deeds of variation in 2010 and 2015, the ultimate effect of which was to extend the Agreement to March 2041. This Court found that the owners corporation had been contractually entitled to terminate the agreement but that, in doing so, had not complied with its contractual obligations. ACPM was thus entitled to damages. The quantification of damages turned in part upon the term of the agreement. Resolution of that issue depended upon whether or not the amending deeds were “caretaker agreements” within s 40B of the 1996 Act such that the 10 year limitation in s 40A applied, or whether the transitional provisions in Sch 4, Pt 4, cl 12 of the 1996 Act operated to extend the 10 year limitation on the term of such contracts.

37. [127]

    There was also an issue in the case as to whether or not the 2015 Deed of Variation was a building manager agreement within the meaning of s 66 of the 2015 Act. This was relevant to two issues. The first was whether the 2015 Deed of Variation was a building manager agreement under the 2015 Act such that the 10 year term under s 68 of the 2015 Act applied. The second was whether the Strata Committee had authority to terminate the agreement absent the approval of a general meeting: at [337]. At [322] Bathurst CJ noted that the primary judge had found that the 2015 Deed took effect as an instrument of appointment under s 40B(1) of the 1996 Act “and that it followed by virtue of the savings provisions that on the commencement of the 2015 Act, the appointment was taken to have been done by reference to s 67 of the 2015 Act”.

38. [128]

    In that context, Bathurst CJ (with whose judgment in this regard Payne and McCallum JJA agreed) held that the caretaker agreement did not fall within cl 15 of Sch 3 to the 2015 Act “as ACPM was entitled to exclusive possession of the Caretaker Lots”: at [338]. Bathurst CJ had “some difficulty with” the conclusion of the primary judge that “that the general savings provision in cl 3(1) applied such that the appointment of the Caretaker under the Caretaker Agreement was taken to have been done under s 67(2) of the 2015 Act, and the Caretaker Agreement was thus a building manager agreement for the purpose of the 2015 Act”: at [339]-[340]. Bathurst CJ held that “the application of the general savings provision in cl 3 in the manner suggested by the primary judge … is inconsistent with cl 15”: at [340].

39. [129]

    However, Bathurst CJ concluded that the savings provisions in s 30 of the Interpretation Act had the effect that “to the extent the 1996 Act as amended operated to limit the effect of the 2010 and 2015 Deeds, the limitation remained in force”: at [341]. Thus, the question of the effect of the 2015 Deed was to be considered having regard to the 1996 Act: at [342]. The 2015 Deed was thus a caretaker agreement within the meaning of s 40B of the 1996 Act: at [348].

40. [130]

    In these passages, Bathurst CJ determined that, having regard to cl 15 of Sch 3, cl 3 of Sch 3 did not have the effect that a caretaker agreement in respect of a caretaker who had a right to exclusive possession of a lot or common space in the strata scheme was taken to be a “building manager agreement” as defined in s 67 of the 2015 Act.

41. [131]

    In my judgment, for the reasons set out below, s 72 of the 2015 Act conferred power on the Tribunal to make orders in respect of the Caretaker Agreement.

42. [132]

    The starting point is the 1996 Act. Section 12 of the 1996 Act provided that the OC had the functions conferred upon it. Under the 1996 Act, functions were defined to include powers. Thus, the appointment of the Caretaker in the Caretaker Agreement was authorised by s 13(1) of the 1996 Act which empowered an owner’s corporation to “employ such persons as it thinks fit to assist it in the exercise of any of its functions”.

43. [133]

    When the 1996 Act was amended by the 2002 Amending Act to introduce ss 40A, 40B and 183A, cl 12 of Pt 4 had the effect that the Caretaker Agreement was deemed to have been made under s 40B of the 1996 Act, subject to the limitations set out in cl 12(2)(b) and (c) of Pt 4. It follows that s 183A, which empowered the Tribunal to make an order “with respect to a caretaker agreement” applied to the Caretaker Agreement. That conclusion is consistent with the second reading speech to the Bill that became the 2002 Amending Act (discussed above at [104]).

44. [134]

    The 1996 Act was repealed on 30 November 2016: s 275 of the 2015 Act. The application to the Tribunal in this case was not made until 23 December 2020. In these circumstances, having regard to the language of s 30 of the Interpretation Act and to the decision of this Court in Colley (discussed above at [123]-[125]), as at 30 November 2016 neither the OC, nor the Tribunal, had any “right, privilege, obligation or liability acquired, accrued or incurred” under s 183A of the 1996 Act that fell within the ambit of s 30(1)(c) of the Interpretation Act.

45. [135]

    An entitlement in the OC to make an application to the Tribunal under s 183A, which the OC shared with all other owners corporations in NSW who had entered into caretaker agreements falling within the ambit of the 1996 Act, was not a right acquired or accrued for the purposes of s 30(1)(c) of the Interpretation Act. Nor was a contingent power in the Tribunal to make an order under s 183A if an application was made to it under that section (and other prerequisites satisfied) an accrued or acquired right within s 30(1)(c) of the Interpretation Act. In this regard, the nature of any right arising under s 183A is analogous to that considered by this Court in Colley.

46. [136]

    The question thus arises as to whether or not the Tribunal had jurisdiction under s 72 of the 2015 Act to make orders on the OC’s application. In my judgment, it did. The Caretaker’s submission that s 72 could not be invoked in respect of the Caretaker Agreement should be rejected for the reasons given by Basten AJA.

47. [137]

    The construction of the 2015 Act adopted by Basten AJA is supported by the statutory context, in particular the fact that s 275 repealed the 1996 Act. It is improbable in the extreme that Parliament intended that, from 30 November 2016 (when the 2015 Act came into effect), an owners corporation lost its right to go to the Tribunal in respect of any agreement that was previously regulated by the 1996 Act.

48. [138]

    This is particularly so given that caretaker agreements entered into before 30 November 2016 were deemed to be building manager agreements under the 2015 Act provided that the caretaker did not have a right to exclusive possession of a lot or common place in the strata scheme: 2015 Act, Sch 3, cl 15. If s 72 of the 2015 Act were found only to confer power in respect of building manager agreements (as defined in the 2015 Act) or those brought within the 2015 Act by 2015 Act, Sch 3, cl 15, it would have the unlikely result that, as regard pre-existing caretaker agreements, the power of the Tribunal in s 72 could be exercised only where the caretaker was not entitled to exclusive possession of a lot or common property in the strata scheme. In my judgment, Parliament would not be found to have intended such an outcome.

Conclusion

1. [139]

   For the reasons set out above, leave to appeal should be allowed but the appeal dismissed with costs.

2. [140]

   I would make the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

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

   3. (3)

      The appeal is dismissed.

   4. (4)

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

3. [141]

   BASTEN AJA: In October 2000, the applicant, Sunaust Properties Pty Ltd, entered into a caretaker management agreement (Caretaker Agreement) with the developer of two buildings in Ultimo containing 334 lots in a strata scheme. The respondent is the owners corporation for the strata scheme.

4. [142]

   In October 2020, the applicant commenced proceedings seeking moneys payable to it pursuant to the Caretaker Agreement. Those proceedings remain on foot. In December 2020, the owners corporation commenced proceedings before the Civil and Administrative Tribunal (the Tribunal). The principal relief sought was an order terminating the Caretaker Agreement and requiring that the applicant sell two lots in the strata scheme to which it was entitled pursuant to the Caretaker Agreement.

5. [143]

   On 17 January 2022, a senior member of the Consumer and Commercial Division of the Tribunal, Graham Ellis SC, made orders in the terms sought by the owners corporation. [1] The applicant appealed to an Appeal Panel of the Tribunal, pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (Tribunal Act).

6. [144]

   The internal appeal in the Tribunal raised two main issues. The first (grounds 1 and 2) challenged the power of the Tribunal to make such an order under the current legislative regime provided by the Strata Schemes Management Act 2015 (NSW) (2015 Act). Whilst s 72 of the 2015 Act contained a power to terminate a caretaker agreement on certain specified grounds, the applicant contended that those powers did not extend to an agreement made prior to 2003. If that contention were correct, the Appeal Panel should have set aside the orders made by the Tribunal and dismissed the proceedings brought by the owners corporation. The second issue raised by the applicant in its notice of appeal (ground 3) was that the Tribunal had no jurisdiction to determine any matter which was the subject of existing proceedings in the Supreme Court, pursuant to Sch 4, cl 5(7) of the Tribunal Act. On 27 July 2022, the Appeal Panel upheld the appeal on the basis that the termination order had involved issues which arose in the Supreme Court proceedings and which the Tribunal did not have jurisdiction to consider. [2] That decision is not challenged.

7. [145]

   However, what the Appeal Panel did not do, and consciously eschewed doing, was to resolve grounds 1 and 2 raised by the applicant, namely that the Tribunal had no power under the 2015 Act to make a termination order with respect to the Caretaker Agreement.

8. [146]

   Immediately the decision was handed down, the owners corporation sought to have the matter relisted on the basis that the application should not have been remitted if the Tribunal in fact lacked jurisdiction to deal with it. That required a determination of grounds 1 and 2 of the appeal. On 10 August 2022, the Appeal Panel gave directions for the applicant to respond to the request of the owners corporation. In effect, the Appeal Panel acceded to the request and, whilst affirming the orders made on 27 July 2022, published further reasons which upheld the jurisdiction of the Tribunal (subject to the removal of the problem with overlapping issues) to determine whether the Caretaker Agreement should be terminated. [3]

9. [147]

   The appeal to this Court is brought from the October decision of the Appeal Panel. The appeal, pursuant to s 83(1) of the Tribunal Act, is limited to an appeal on a question of law and requires leave of the Court. The draft notice of appeal challenged the decisions of the Appeal Panel (i) to reopen its July decision in order to address grounds 1 and 2 in the notice of appeal, and (ii) not to uphold grounds 1 and 2.

Grant of leave to appeal

1. [148]

   If this Court were persuaded that the Appeal Panel should not have reopened its decision in order to consider grounds 1 and 2, it would have been appropriate, subject to discretionary factors, for the Court to grant leave and set aside the October decision of the Appeal Panel. That would have left in place the remittal to the single member of the Tribunal, but without any effective determination by the Appeal Panel as to the jurisdiction of the Tribunal to determine the owners corporation’s application to terminate the Caretaker Agreement.

2. [149]

   That would be an unsatisfactory result for two reasons. First, if the Tribunal followed its own decision of January 2022, it would accept that it had the power to terminate the Caretaker Agreement pursuant to s 72 of the 2015 Act. A second appeal to the Appeal Panel would be likely. Further costs would be incurred by the parties in circumstances where the outcome might have been determined by this Court in the present proceeding, having heard full argument.

3. [150]

   Secondly, even if not persuaded by its own earlier reasoning, the Tribunal might be influenced by the knowledge that the Appeal Panel had earlier accepted similar reasoning in the same matter, although that reasoning could not be relied on to resolve the issue. If the Tribunal were otherwise inclined not to follow its earlier decision, it might nevertheless be influenced by the knowledge that, if a different decision were made, it would be appealed and probably overturned.

4. [151]

   If, on the other hand, this Court were to grant leave to appeal, there would be merit in it resolving the legal issue as to the power of the Tribunal to terminate the Caretaker Agreement.

5. [152]

   In these circumstances, the better course is to grant leave to appeal and address both aspects of the applicant’s notice of appeal.

Reopening reasons

1. [153]

   The argument put forward by the owners corporation and accepted by the Appeal Panel was that the Panel had power to alter its written statement of reasons to correct an error, pursuant to s 63 of the Tribunal Act. (The section is set out in full at [46] above.) The criterion contained in s 63(1) is the existence of “an obvious error”, which may appear in the “written statement of reasons for the decision”. Much of the debate in this Court was as to whether that criterion should be given a broad or a narrow construction.

2. [154]

   A number of factors suggest that it should not be treated as wide enough to permit the reopening of a decision in order to address substantive issues which had not previously been addressed. First, there is the language of s 63(1) itself. The fact that, a member presiding at proceedings may direct a registrar to alter the statement of reasons in accordance with his or her directions, suggests that it was not intended to apply to substantive issues. If there were a failure to deal with a substantive issue, it is quite unlikely that (i) the existence of the error would depend upon the satisfaction of the member presiding; (ii) the error would be corrected by a direction to a registrar to alter the text; and (iii) there would be no provision for a further hearing.

3. [155]

   Further, a substantive error would not readily be described as an obvious clerical or typographical error (subs (3)(a)) or a defect in form (subs (3)(c)). It is also, in that context, unlikely to constitute an error of some undisclosed kind, but arising from an accidental slip or omission (subs (3)(b)). On the other hand, it is true that a broader range of errors could arise from an accidental slip or omission, and that an inconsistency between the decision and the reasons (subs (3)(d)) may have a substantive flavour.

4. [156]

   Some support for a broader interpretation was derived from judgments dealing with the provision in the Uniform Civil Procedure Rules 2005 (NSW) for the correction of a judgment or order and referred to as the “slip rule”. That rule provides:

5. [157]

   A review of the older cases is no longer appropriate: as stated by Spigelman CJ (with the agreement of Santow JA and Handley AJA) in Newmont Yandal Operations Pty Limited v The J Aron Corporation & The Goldman Sachs Group Inc, [4] in courts bound by s 56 of the Civil Procedure Act 2005 (NSW) the “overriding purpose” requires that such rules be construed so as to facilitate the just, quick and cheap resolution of the real issues in the proceedings. A similar obligation, described as the “guiding principle”, is to be found in s 36 of the Tribunal Act. Further, and importantly, s 38 relevantly provides:

6. [158]

   While the criteria of engagement in s 63 and r 36.17 are similar, their mode of operation is not. Rule 36.17 is authority for the court to correct a mistake or error; s 63(1) provides a different mechanism of operation, namely by the Tribunal, or a single member of a multimember panel, directing the registrar to alter the text of a statement of reasons. Section 63 is not consistent with the exercise of discretion on the part of a member potentially changing the outcome of a determination. Yet it is clear that the course undertaken by the Tribunal following its July decision was to exercise the substantive powers conferred upon it in order to determine an appeal. The October decision did not purport to be an alteration to the text of the July decision; it was a new decision. It involved the determination of grounds of appeal going to the question of jurisdiction, which had not been addressed in the earlier decision. It was 70 paragraphs in length.

7. [159]

   Accordingly, to the extent that the Appeal Panel considered that it was exercising a power under s 63 of the Tribunal Act, it was, as the applicant submitted, in error. However, though in error as to the source of its powers, it was not in error in thinking that it had the relevant powers.

8. [160]

   In the absence of any indication in the Tribunal Act that the Appeal Panel is not able to reopen a decision once pronounced, there will be circumstances in which it may do so and, indeed, circumstances where it should do so. Such a power will fall within the breadth of the procedural powers conferred on it under s 38. Where the Tribunal is satisfied that it has failed to address one of the real issues in the proceedings before it, it may (and perhaps should) reopen the proceedings in order to give effect to the guiding principle set out in s 36 of the Tribunal Act.

9. [161]

   Failure to deal with issues raised by an appeal may be described, in terms relevant to the exercise of the supervisory jurisdiction of the Supreme Court, as a constructive failure to exercise the Tribunal’s jurisdiction. The relevant principle was stated, at least in part, by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj, [5] in the following terms: [6]

10. [162]

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

11. [163]

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

Jurisdiction to terminate Caretaker Agreement

1. [164]

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

2. [165]

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

3. [166]

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

4. [167]

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

5. [168]

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

6. [169]

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

7. [170]

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

8. [171]

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

9. [172]

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

10. [173]

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

11. [174]

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

12. [175]

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

13. [176]

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

14. [177]

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

15. [178]

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

16. [179]

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

17. [180]

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

18. [181]

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

19. [182]

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

20. [183]

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

21. [184]

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

22. [185]

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

Authority to the contrary?

1. [186]

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

2. [187]

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

3. [188]

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

4. [189]

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

5. [190]

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

Conclusion

1. [191]

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