Lot owner refused a stay of an order to remove an unauthorised garage door (NCAT, 2026)

What happened

On 22 July 2026 the Tribunal's Consumer and Commercial Division made orders about a double garage door installed on two lots in a strata scheme. In the written reasons for that decision, the Senior Member explained that the garage door had been put up without the authority of the owners corporation, The Owners – Strata Plan No 2627. One of the orders, order 5A, authorised the owners corporation to remove the double garage door after 22 September 2026. The orders also gave the owners corporation authority to enter the lot owner's lot to the extent needed to remove the door if it had not already been taken down. The Appeal Panel noted that the decision recorded the lot numbers incorrectly, and that this was clearly a typographical error.

On 9 September 2026 the lot owner lodged a notice of appeal and a first stay application. A "stay" is an order that pauses the effect of a decision while an appeal is on foot. He asked for order 5A to be set aside, saying the order might produce an unfair and disproportionate outcome given the practical vehicle access and security issues, and that the decision was not fair and equitable and did not deal adequately with those issues.

On 11 September 2026 the Appeal Panel listed the first stay application for hearing and dismissed the part of it that sought an urgent order made without the other side present. The Appeal Panel accepted there was urgency because of the date the removal work could start, but was not satisfied the appeal raised serious questions. A second stay application was lodged on 15 September 2026. The hearing dates were rearranged so that both stay applications were heard together on 21 September 2026.

At that hearing the lot owner appeared for himself and the owners corporation was represented by its strata managing agent. The two other respondents, individual lot owners, did not appear. The lot owner relied on documents from his lodged bundle, which became exhibit A1, and on his own statutory declaration, which became exhibit A2, along with his stay application and written submissions. The owners corporation called no evidence and relied on written submissions. The Appeal Panel also recorded that the appeal had been lodged out of time, in circumstances where there was no suggestion the lot owner did not know about the time limit; he had been trying to get a by-law passed that would make the removal order unnecessary, and had not been able to because the neighbouring lot owners did not agree.

What each side wanted

The lot owner asked the Appeal Panel to pause order 5A so the garage door could not be removed before his appeal was decided, arguing the removal order was unfair and disproportionate and did not properly account for vehicle access to, and the security of, his lot. The owners corporation opposed both stay applications and relied on written submissions rather than evidence. The appeal itself sought to have order 5A set aside.

What the tribunal decided

The Appeal Panel made two orders on 21 September 2026, with reasons published on 29 October 2026: "(1) The stay application of the appellant lodged on 9 September 2026 is dismissed. (2) The stay application of the appellant lodged on 15 September 2026 is dismissed."

No money was ordered to be paid either way. The effect was that order 5A of the 22 July 2026 decision was not paused, so the owners corporation's authority to remove the double garage door after 22 September 2026 remained in place while the appeal continued.

Why the tribunal decided it that way

The power to pause a decision comes from section 43(3) of the Civil and Administrative Tribunal Act 2013 (NSW), which lets the Tribunal make orders staying or otherwise affecting a decision that is under appeal, as it considers appropriate to secure the effectiveness of the appeal. The Appeal Panel applied the same principles the courts use for a stay pending appeal, drawing on earlier Tribunal and Court of Appeal decisions. Under those principles the person asking for a stay must show, first, that the appeal raises serious issues for the appeal body to decide and, second, that there is a real risk they will suffer prejudice or damage if the stay is not granted. Only if both are shown does the decision-maker weigh the balance of convenience and the competing rights of the parties. A further relevant factor is whether the appeal would be rendered pointless without a stay.

The Appeal Panel was not satisfied the appeal raised serious questions, in the sense of an arguable case. The wrong lot numbers in the decision were plainly a typing error. The orders already included authority for the owners corporation to enter the lot so far as necessary to remove the door. The points raised in the leave-to-appeal part of the notice of appeal would not, even if fully accepted, make out an appropriate case for leave. Under the principles in Collins v Urban, leave to appeal in this kind of matter is only given where there is a question of public importance, an issue of principle, or fact finding that is thoroughly unorthodox. The appeal had also been lodged out of time, with no suggestion the lot owner was unaware of the time limit.

The Appeal Panel said that if it had found an arguable case, it would have accepted there was some prejudice, because removing the unauthorised structure takes away a garage door that presumably gave some security for the lot owner's car. Even so, the balance of convenience did not favour a stay. The lot owner had known since the decision under appeal that the garage door was common property and had been erected without authority. The reason he had not obtained a by-law was that the neighbouring lot owners did not agree, and nothing was likely to change between the stay hearing and the appeal hearing that would make a by-law a reasonable possibility. Both stay applications were therefore dismissed.

What this means if you are in a similar position

This decision shows how the Tribunal applies the stay rule in section 43(3) of the Civil and Administrative Tribunal Act 2013 (NSW). Lodging an appeal does not, by itself, stop the orders you are appealing from taking effect. If you are in a similar position, the decision shows that a stay is treated as a separate request with its own test: whether the appeal raises serious issues, whether there is a real risk of prejudice without a pause, and then the balance of convenience. It also shows that sympathy for the practical effect of an order, such as losing security for a vehicle, is weighed at the later stages and does not stand in for an arguable case.

The decision also illustrates how strata appeals are filtered. Appeals of this kind generally need leave, and the Collins v Urban principles mean leave is confined to questions of public importance, issues of principle, or thoroughly unorthodox fact finding, rather than a general rehearing of whether the result felt fair. Here the Tribunal also noted that the appeal was filed late, and that waiting on a by-law the other lot owners would not agree to did not change the position. Typing errors in a decision, such as the wrong lot numbers, were treated as obvious slips rather than grounds of appeal.

More broadly, the underlying dispute began with a structure attached to common property that the owners corporation had not authorised. If you are in a similar position as a lot owner or an owners corporation, disputes about common property and approvals are usually raised first in writing with the strata committee or owners corporation, setting out what the issue is and what is being asked for, with a tribunal application only after that written step has not resolved it.

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

Source: McGaw v The Owners – Strata Plan No 2627 [2026] NSWCATAP 335 (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.