Can I Challenge an NCAT Strata Decision: Appealing an NCAT Decision in NSW

Introduction

Challenging a strata decision made by the New South Wales Civil and Administrative Tribunal (NCAT) is a significant step for anyone dissatisfied with the outcome of their matter. The appeals process is designed to address legal errors or serious procedural issues, rather than simply providing another opportunity to re-argue the original case.

Understanding the strict requirements and time limits involved is essential for strata participants considering an appeal. This guide outlines the key principles, legal framework, and practical considerations that shape the NCAT strata appeals process in New South Wales.

Interactive Tool: See If You Qualify to Appeal Your NCAT Strata Decision

Understanding the Basis for a Strata Appeal

Appealing on a Question of Law

An appeal to the NCAT Appeal Panel is not an opportunity to re-run your original case or re-argue points you were dissatisfied with. The process is designed to review the first decision for specific errors, not to conduct a complete re-hearing. A party has an automatic right to appeal a decision on what is known as a "question of law."

Questions of law are distinct from questions of fact. A question of fact relates to the merits of the decision, such as whether the Tribunal made the "right" choice based on the evidence. In contrast, a question of law concerns whether the correct legal processes and principles were applied.

Common examples of a question of law include situations where the Tribunal may have:

• Incorrectly interpreted the words of legislation or a by-law.
• Failed to provide procedural fairness, also known as natural justice, to a party.
• Did not give adequate or sufficient reasons for its decision.
• Made a critical finding of fact with no evidence to support it.
• Misapplied a legal principle to the facts it had established.

It is important to understand that a wrong or questionable finding of fact does not automatically become a question of law. So long as there was some evidence to support the Tribunal's factual findings, an appeal is unlikely to succeed on this ground.

Seeking Leave to Appeal on Other Grounds

For any grounds of appeal that do not involve a question of law, you must first obtain permission, or "leave," from the Appeal Panel. Simply disagreeing with the outcome is not enough to be granted leave. The Appeal Panel sets a high threshold, and you must demonstrate something more than the original decision being arguably wrong.

All strata disputes are heard in the Consumer and Commercial Division, which has additional requirements for granting leave. An appellant must satisfy the Appeal Panel that they may have suffered a substantial miscarriage of justice.

Ordinarily, leave to appeal is only granted in matters that involve:

• A situation where the Tribunal conducted the fact-finding process in an unorthodox or unfair manner.
• An important issue of legal principle.
• A question of general public importance.
• A clear injustice that goes beyond being merely arguable.
• A factual error that was unreasonably arrived at and is clearly mistaken.

Key Grounds for a Strata Appeal on a Question of Law

Applying Wrong Legal Principles or Misinterpreting the Law

An appeal may be founded on the basis that the Tribunal applied an incorrect legal test or misinterpreted the relevant legislation or by-law. The Appeal Panel's role is not to simply substitute its own decision but to determine if the original Tribunal committed an error in legal principle.

For example, in Strata Plan No 73943 v Gazebo Penthouse Pty Ltd [2014] NSWSC 1536, the Tribunal made a legal error by failing to address the true question posed by a by-law—specifically, whether a lift exclusively serviced a penthouse lot, rather than whether it had been exclusively used by its occupants.

Such a legal error can arise in several ways, including when the Tribunal:

• Considers irrelevant factors in its decision-making process.
• Demonstrates a misunderstanding of the established facts of the case.
• Neglects to give sufficient weight to critically important matters.
• Issues an order that is manifestly unreasonable or unjust, suggesting an underlying error of law.

Failing to Provide Adequate Reasons for the Decision

The Tribunal has a duty to provide adequate reasons for its decisions, and a failure to do so can constitute an error of law. While the standard for tribunals may be more relaxed than for courts, the reasons must still meet a minimum threshold to ensure fairness and transparency.

According to the principles established in cases like NSW Land and Housing Corporation v. Orr [2019] NSWCA 231, this includes providing basic explanations for their conclusions.

Under the New South Wales Civil and Administrative Tribunal Act 2013 (NSW), the reasons provided should:

• Outline the Tribunal's findings on material facts.
• Explain its understanding of the applicable law.
• Describe the reasoning process that connects the evidence to the final decision.

An appeal may be justified if the Tribunal fails to set out the evidence or reasoning that led to its key findings on important issues in the strata dispute.

Denying Procedural Fairness During the Hearing

Procedural fairness, also known as natural justice, is a fundamental requirement in all Tribunal proceedings and a cornerstone of resolving strata disputes. Section 38 of the New South Wales Civil and Administrative Tribunal Act 2013 (NSW) explicitly requires the Tribunal to act in accordance with these principles.

An appeal based on a denial of procedural fairness focuses on the fairness of the hearing process itself, rather than the merits or outcome of the decision.

This ground for appeal ensures that all parties involved in a strata matter are given a fair and equitable opportunity to present their case. A breach of procedural fairness could involve:

• A failure to provide adequate notice of a hearing.
• Not allowing a party to present evidence or cross-examine witnesses.
• A perception of bias from the decision-maker.

Making a Decision with No Supporting Evidence

A critical distinction exists between a decision made against the weight of evidence and one made with no evidence at all. While disagreeing with how the Tribunal weighed the evidence is a question of fact, a finding of fact that is not supported by any probative evidence can be considered an error of law. This provides a specific and important ground for a strata appeal.

For example, if the Tribunal makes a crucial finding that is essential to its final orders but there was no evidence presented during the hearing to support that finding, an appeal may be warranted. As established in cases like Anderson Stuart v Treleaven [2000] NSWSC 536, a decision based on facts for which there is no evidence is an appealable error of law.

The Process for Seeking Leave to Appeal Your Strata Decision

Proving a Substantial Miscarriage of Justice

For strata appeals from the Consumer and Commercial Division, you must demonstrate that a "substantial miscarriage of justice" may have occurred. This involves showing there was a significant possibility of a different, more favourable outcome if the alleged errors had not been made. This principle was established in the case of Collins v Urban [2014] NSWCATAP 17.

Even if you can show a substantial miscarriage of justice, the Appeal Panel still has the discretion to grant leave. Permission to appeal is typically reserved for cases that involve:

• Issues of legal principle
• Questions of general public importance
• A clear and obvious injustice that goes beyond being merely arguable

Simply arguing that the original decision was wrong is not enough to meet this high threshold. The injustice must be plain and readily apparent for the Appeal Panel to reconsider the matter.

Arguing the Decision Was Against the Weight of Evidence

Another ground for seeking leave to appeal is that the Tribunal's decision was against the weight of the evidence. This means the conclusion reached by the Tribunal was significantly misaligned with the evidence presented during the hearing.

It is important to understand that this is considered a question of fact, not an error of law. Successfully appealing on this basis is challenging because tribunals are generally given deference as the primary fact-finders.

To succeed, you must demonstrate either:

• The Tribunal made a clear error in its evaluation of the evidence, or
• Its conclusion was so unreasonable that it could not be logically supported by the facts presented

Introducing Significant New or Fresh Evidence

You may also seek leave to appeal by introducing significant new evidence, but the criteria are very strict. Such evidence must not have been reasonably available at the time of the original hearing.

For example:

• In Lehner v The Owners - Strata Plan No 65870 [2023] NSWCATAP 102, the Appeal Panel refused to admit documents that the appellant had simply forgotten to bring, since they were reasonably available at the initial hearing.
• By contrast, in Claydon v NSW Land and Housing Corporation [2015] NSWCATAP 192, evidence arising after the decision—namely the withdrawal of related charges—was accepted as significant new evidence.

Navigating the NCAT Strata Appeal Process Step by Step

Meeting Strict Deadlines & Filing Your Notice of Appeal

Strict time limits apply when appealing an NCAT strata decision, so prompt action is essential. Generally, you must lodge your appeal within 28 days from the date you are notified of the decision or receive the written reasons, whichever is later. For some matters, such as residential proceedings, this timeframe is shorter—only 14 days.

To begin the process:

• Complete and file a "Notice of Appeal" form with the NCAT Registry.
• Submit the original form and several copies in person or by post, as online, email, or fax submissions are not accepted.
• Pay a significant fee at the time of lodgement.

If you have missed the deadline, you can request an extension. However, you must provide a good reason for the delay, and it is up to the Tribunal to decide whether to accept the late application.

Applying for a Stay of the Original Decision

Filing a Notice of Appeal does not automatically pause the original orders made by the Tribunal. The decision remains in effect and can be enforced by the other party while your strata appeal is pending.

To prevent this, you must apply for a "stay," which is an order that suspends the original decision until the appeal is decided. This involves:

• Lodging a separate "Stay of original decision pending appeal" form, which can be submitted at the same time as your Notice of Appeal.
• Providing compelling reasons why the original orders should be put on hold, as a stay is not granted automatically.

The Callover & Hearing Process

After your appeal is lodged, you will be notified to attend a "callover," also known as a directions hearing. The appeal itself is not heard at this stage. Instead, the callover is a preliminary step where the Appeal Panel manages the case and prepares it for the final hearing.

During the callover, the Appeal Panel may:

• Decide on applications for a stay or an extension of time.
• Determine whether leave to appeal is required and should be granted.
• Set a timetable for parties to file and serve written submissions and evidence.
• Schedule the date for the final appeal hearing.

The final hearing is typically conducted orally before an Appeal Panel consisting of one or more Tribunal members. The appellant presents their case first, followed by the respondent. The Panel may deliver its decision at the end of the hearing or reserve it to be published at a later date, usually within three months.

Potential Outcomes of Your Strata Appeal

Powers of the NCAT Appeal Panel

Under section 81 of the Civil and Administrative Tribunal Act 2013 (NSW), once the hearing is complete the NCAT Appeal Panel has broad powers and can make several different orders depending on the merits of the case. The potential outcomes include:

• Dismiss the appeal: If the Panel finds no error in the original decision.
• Confirm, affirm, or vary the decision: Uphold the original decision, formally confirm it, or modify its orders.
• Quash or set aside the decision: Cancel the original decision so it no longer has legal effect.
• Substitute the decision with another decision: Replace the original ruling with a new one.
• Order the Tribunal to reconsider the case: Send the matter back to the original Tribunal, in part or in whole, for a new hearing.

Understanding Costs in a Strata Appeal

The rules for awarding legal costs in a strata appeal generally mirror those of the original NCAT hearing, making it important to understand the principles of winning your legal costs in an NCAT strata dispute. If you intend to seek an order for the other party to pay your costs, you should:

• State this in your Notice of Appeal or Reply to Appeal.
• Inform the Appeal Panel at the beginning of the hearing.

The Panel will then address the issue of costs either during the hearing or, after it has concluded, by reviewing written submissions from each party.

Responding to a Meritless Strata Appeal

A Case Study in Defending a Win

When you are successful in your strata dispute, the opposing party may still choose to appeal the decision. In such situations, it is crucial to have expert representation to protect your victory.

The case of The Owners-Strata Plan No 79633 v Graorovska [2022] NSWCATAP 152 provides a clear example of how a well-defended win can be upheld. In this matter:

• PBL Law Group acted for the successful lot owner after the Owners Corporation appealed the initial decision.
• The appeal was not based on the facts of the case but instead relied on tenuous grounds of ‘procedural unfairness’.

The Appeal Panel ultimately dismissed all grounds, describing them as ‘manifestly weak’.

This outcome underscores several important points:

• A properly argued initial decision can be robustly defended.
• Using procedural arguments to challenge a fact-based loss is a strategy that is unlikely to succeed in a strata appeal.

Conclusion

Successfully challenging an NCAT strata decision, a complex area of strata law, requires understanding that an appeal is a review for legal errors, not an opportunity to re-argue your case. Navigating the process involves meeting strict deadlines, establishing valid grounds such as a question of law or a substantial miscarriage of justice, and preparing for various potential outcomes.

Given the complexities of the appeals process, it is critical that you seek expert advice as soon as a decision has been made. For trusted expertise in navigating your NCAT strata appeal, contact the experienced NCAT strata dispute lawyers at PBL Law Group today to discuss your case and receive tailored legal counsel.

Frequently Asked Questions