In a recent decision (Hua Nan Trading Pty Ltd v The Owners - Strata Plan No 32396 [2023] NSWCATAP 66) concerning the period of time within which parties may commence proceedings under section 106 of the Strata Schemes Management Act 2015 (NSW) (SSMA), the Appeal Panel held that the NSW Civil and Administrative Tribunal (NCAT) has power to extend that time period, arising under section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

Background

An initial application sought to be filed by the applicant (for damages for breach of the duty to repair and maintain common property under section 106(5) of the SSMA and an order for access to records) was not accepted because compulsory mediation (albeit relevant only to the order sought under section 106) had not been attempted (the First Proceedings). A subsequent mediation was unsuccessful.

A further application was filed, seeking the same orders as in the First Proceedings (the Second Proceedings).

The respondent owners corporation argued that the Second Proceedings were brought beyond the two-year limitation period (in section 106(6) of the SSMA) after the owner first became aware of the loss.

At first instance, NCAT agreed and considered whether it could extend time under section 41 of the NCAT Act which provides:

"41 Extensions of time

(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2) Such an application may be made even though the relevant period of time has expired."

NCAT found that this section could not extend time under section 106(6) of the SSMA because:

  • to apply section 41 of the NCAT Act in this way "would confer on the Tribunal jurisdiction to entertain a claim that the legislation makes clear it does not possess"
  • "s 41 only applies to extend the period of time for the doing of anything under legislation. Section 106(6) does not state a time for filing an action or doing anything: it expressly prevents bringing an application outside the 2 year time limit. In my view the power in s 41 to extend does not apply to extend the time limit because that is not a period of time within which, something must be done".

NCAT relied on S & G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190 (S&G Homes) in which the Appeal Panel held that section 41 of the NCAT Act did not empower the Tribunal to extend the time for bringing proceedings referred to in sub-sections 48K(3), (4), (6) and (7) of the Home Building Act 1989 (NSW) (HBA), where the facts referred to in those sub-sections are pre-conditions to the exercise of the Tribunal's jurisdiction.

The appeal

The Appeal Panel did not agree that the temporal element in section 106(6) of the SSMA is a jurisdictional fact. Further, the Appeal Panel considered that even if it was, there was no authority to suggest that it would be beyond the power of Parliament to provide for its extension, rather, the issue was a matter of statutory interpretation.

The Appeal Panel referred to the principles of statutory interpretation as summarised in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, that "the process of construction must always begin by examining the context of the provision that is being construed" and that a court must "give effect to harmonious goals" of legislative instruments.

The Appeal Panel was satisfied that the Tribunal had general jurisdiction under section 232 of the SSMA and jurisdiction to make interlocutory decisions in proceedings under which it has general jurisdiction, under section 29(2)(a) of the NCAT Act. Noting that the definitions of interlocutory decision and legislation in section 4 of the NCAT Act permit an interlocutory decision regarding the application of the NCAT Act, the Appeal Panel found that the combined effect of section 232 of the SSMA and sections 4 and 29(2)(a) of the NCAT Act provided the Tribunal with general jurisdiction over a matter involving the SSMA, "including jurisdiction to make an interlocutory decision to extend the period of time for the doing of anything under the SSMA (being 'any legislation in respect of which the Tribunal has jurisdiction') despite anything to the contrary under that legislation."

The Appeal Panel distinguished this position from section 48K of the HBA, considered in S & G Homes, given the limited jurisdiction established in section 48K of the HBA, as opposed to the broad jurisdiction conferred by section 232 of the SSMA. Further, the Appeal Panel noted that the limitations in sub-sections 48K(3), (4), (6) and (7) of the HBA are each expressly directed to the Tribunal, whereas section 106(6) of the SSMA is directed to the owner.

The Appeal Panel interpreted section 41 of the NCAT Act as overriding any provision to the contrary in legislation which confers general jurisdiction on the Tribunal and rejected the Tribunal below's narrow reading of the section.

Outcome

Accordingly, the Appeal Panel found that the Tribunal had erred in its decision that the time limit under section 106(6) of the SSMA could not be extended through section 41 of the NCAT Act.

The Appeal Panel cautioned that this result did not give permission to owners to sit on their hands, they would still need to convince the Tribunal that time should be extended.

Although the Appeal Panel carefully wove a distinction between section 106(6) of the SSMA and sub-sections 48K(3), (4), (6) and (7) of the HBA, thus preserving S & G Homes, the reach of section 41 is unlikely to have been determined for all time.

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