Appeal won: strata repair case sent back after late evidence left lot owners no time to prepare (NCAT, 2026)

What happened

Two owners of a lot in a strata scheme applied to the tribunal under section 106 of the Strata Schemes Management Act 2015 (NSW). That section places a duty on an owners corporation (the body made up of all the lot owners, which looks after the shared parts of a building) to keep the common property in a proper state of repair. The lot owners said water was getting into their lot through a defect in the common property, that the owners had already approved a quote for the repair work and raised the money for it, and that the owners corporation had then unreasonably delayed getting the work done while it negotiated with the building's original builder, Dilcara.

At the first hearing, the tribunal member accepted that there was a common property defect letting water into the lot, and that this meant the owners corporation had an obligation under section 106(1) to deal with it properly. Even so, the member dismissed the application. The member said there was no point making the orders sought, because the defects appeared close to being resolved, because there was likely to be a cost saving to all the owners if the original builder did the work under a deed of settlement rather than the owners paying for it themselves, and because the owners corporation had committed to prioritising this lot once work started. The member also said the previously approved quote was brief on scope and detail, was likely out of date, and it was unclear whether that provider was still willing or available.

Four days before that hearing, at 2:30pm on a Friday, the owners corporation filed a three-page witness statement from a member of the strata committee. It set out where the negotiations with the builder had got to, and said that once an in-principle agreement was reached the owners corporation intended to call a general meeting to approve a deed of settlement, after which the deed would be signed and the builder could start the rectification work. At the hearing the lot owners, who had no lawyer, said the statement had come in on the Friday at 2:30pm and they had not had time to review it or prepare for it. The member replied, "I understand." Nothing further was done about it.

When the appeal was heard, the appeal panel asked the parties whether the defects had been fixed and whether the deed described in that statement had been signed. It was told that no defect rectification had happened and the deed had not been signed.

What each side wanted

The lot owners asked the appeal panel to overturn the dismissal, raising four grounds of appeal. The ground that decided the case was that the late witness statement, served outside the tribunal's directions with only one business day of notice as they put it, left them no real chance to respond, and that the tribunal had not asked for their agreement to accept it or given them an equivalent opportunity to object. The owners corporation argued that the tribunal can decide its own procedure, so it was entitled to accept a document it thought would help it, and that the purpose of this statement was simply to give the tribunal an up-to-date account of the negotiations with the builder over the defects and the deed of settlement, which was relevant. Its representative also accepted, in answer to a question from the panel, that it was arguable the member should have told the lot owners what their rights were about the late evidence, and that the paragraph about the intended deed was relevant to the member's view that the dispute with the builder was close to being resolved.

What the tribunal decided

The appeal panel made two orders. First, the appeal was allowed. Second, application 2025/00462863 was remitted (sent back) to the Consumer and Commercial Division of the tribunal, as originally constituted, meaning before the same member, for reconsideration with such further evidence as to whether the owners corporation has rectified or caused to be rectified the common property defects the subject of the application as the tribunal considers appropriate.

No money was ordered to be paid by either side, and the panel did not itself decide whether the owners corporation had breached its repair duty. The effect of the orders is that the lot owners' original application is alive again and is to be heard afresh, this time with evidence about whether the repairs have actually been done.

Why the tribunal decided it that way

The panel applied section 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), which requires the tribunal to take such measures as are reasonably practicable to ensure that parties have a reasonable opportunity to be heard or to have their submissions considered. Drawing on an earlier appeal decision, Brown v A Hambridge & G Riog Pty Ltd, and the Court of Appeal's decision in Italiano v Carbone, the panel said that where it is necessary this can mean offering a party an adjournment, that is, a pause or a later hearing date, whether or not the party has asked for one. Tribunal members need to be alert to a party receiving evidence late and being unable to consider, understand and answer it at the hearing.

On that basis the panel found the member erred by not offering the lot owners an adjournment once it emerged that they had received the owners corporation's 24 July statement three clear days before the hearing and had not had time to review and prepare for it. The panel accepted that the lot owners, representing themselves, had no understanding of how the tribunal deals with documents served late. The failure was a breach of the obligation in section 38(5)(c), which in the panel's view includes being in a position to consider and understand the other side's evidence and to address it. A failure to give procedural fairness, meaning a fair hearing, raises a question of law, which is the kind of error that can be appealed as of right.

The panel then asked whether allowing the appeal would make any difference, applying the High Court's decision in Stead v State Government Insurance Commission. Under Stead, a new hearing will not be ordered if it would inevitably produce the same result, because that would be futile; but the test is whether the unfairness deprived the party of the possibility of a successful outcome, not whether the result would probably be the same. Here the panel found a rehearing would make a difference, because the reasons the member gave for dismissing the section 106 case, essentially that the dispute with the builder was about to be resolved, would most probably be shown not to exist: on the day of the appeal, the deed was still unsigned and no repairs had been done. The panel used the power in section 81(1)(e) of the Act to send the matter back.

What this means if you are in a similar position

This decision is about how a hearing is run, not about how much a leak is worth. It shows that when one side files evidence very close to a hearing date, the tribunal's duty to give both sides a reasonable opportunity to be heard can require it to offer a break or a new hearing date, even if the party affected does not know to ask for one. If you are in a similar position and you say at a hearing that you only just received the other side's material and have not had time to read it, this decision shows the tribunal is expected to turn its mind to whether you can fairly go on, rather than simply note your comment and continue.

It also shows how tribunals treat a promise that a problem is about to be fixed. If you are a lot owner in a dispute about common property repairs, the decision shows that an owners corporation's duty to keep common property in repair does not disappear because it is negotiating with the builder, and that a dismissal built on an expected settlement can be revisited when that settlement has not happened and the repairs still have not been done. On an appeal about fairness, the question is not whether a fresh hearing would probably change the result, but whether the unfairness took away the possibility of a different outcome.

In this kind of dispute, the step most people take first is a written one: a letter or formal complaint to the strata committee or owners corporation setting out the defect, the damage, what has already been approved and what they want done by when, so that there is a clear written record of the request and the response. If that does not resolve matters, the next stage is usually an application to the tribunal, and if a hearing has already gone against you on a point of law or because you were not given a fair chance to be heard, an appeal or set-aside application is the avenue the rules provide.

How to apply: our step-by-step guide to a NCAT application. More decisions: NCAT cases and strata and body corporate.

Source: Smardon v The Owners – Strata Plan No 95695 [2026] NSWCATAP 333 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.