Australia, Aug. 4 -- New South Wales Land and Environment Court issued text of the following judgement on July 3:

1. Ms Evans is the owner of a lot in a strata scheme. The scheme comprises four lots, two of which are commercial premises located on the ground floor and two residential lots on the first floor. Ms Evans is the owner of one of the residential lots.

2. On 29 January 2023 Ms Evans filed an application with the Consumer and Commercial Division of the Tribunal in which she sought a number of orders. That application was dismissed by the Tribunal and Ms Evans lodged an internal appeal against the substantive decision made by the Tribunal as well as a later costs decision made in the Tribunal proceeding.

3. On 21 May 2023 we refused Ms Evans' request to extend the time for the filing of the appeal against the substantive decision and otherwise dismissed the appeal: Evans v The Owners - Strata Plan No. 40841 [2025] NSWCATAP 113. We also made directions for the filing of submissions in relation to the costs of the appeal. As the respondent to the appeal had made submissions as to costs in its written submissions before the Appeal Panel, orders were made for Ms Evans to have an opportunity to file submissions first and the respondent to file any further submissions. Both parties were also directed to identify whether an oral hearing on costs was sought or whether they considered the matter could be dealt with without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

4. Ms Evans filed submissions on 3 June 2025 and the respondent filed further brief submissions on 25 June 2025. The respondent's submissions were filed after the due date as directed. The submissions were provided in response to Ms Evans' submissions of 3 June 2025. We do not consider that the short delay in filing the submissions causes any disadvantage and we have therefore taken them into account.

5. The respondent consented to the Appeal Panel determining the issues of costs on the papers and without a further oral hearing. Ms Evans did not indicate any view on whether a hearing could be dispensed with. We are satisfied that the matter can be adequately determined in the absence of the parties and therefore dispense with a hearing pursuant to s 50(2) of the NCAT Act.

Background

6. In the proceedings before the Tribunal Ms Evans claimed that the respondent had breached the obligations imposed by s 106(1) of the Strata Schemes Management Act 2015 (NSW) ("the SSMA") to repair and maintain various aspects of the common property. She also sought that repairs be undertaken, that she be awarded damages under s 106(5) of the SSMA arising out of the breach and that a compulsory strata managing agent should be appointed under s 237 of the SSMA. As noted above, the proceedings were dismissed and a costs order was made against Ms Evans.

7. In the appeal Ms Evans submitted that the Tribunal had erred on a number of grounds. These grounds primarily related to the Tribunal's decision with respect to noise emanating from an exhaust fan from one of the commercial premises on the ground floor and an alleged associated fire risk. Another ground was that the Tribunal erred in refusing to make orders for the appointment of a compulsory strata manager. She also submitted that the Tribunal erred in ordering her to pay the respondent's costs.

8. We did not find that the Tribunal had made an error on a question of law in relation to any of the grounds raised by Ms Evans. We also found that there was no basis upon which leave to appeal could be granted. We determined that the Tribunal had applied the correct legal principles and its conclusions were clearly open on the evidence before it.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197c91f4dc673854ae09a2e1)

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