Owners corporation wins strata appeal after tribunal decided an argument it was told not to argue (NCAT, 2026)

What happened

The dispute concerns a mixed residential and commercial strata scheme at Layton Street, Camperdown, made up of 66 lots and common property. The owners corporation is the body that manages the scheme. The respondents are the owners of lot 2 in the scheme; the second respondent is a director of the first respondent company, Baltusrol Pty Ltd.

In December 2022 the owners corporation filed an application in the Tribunal. By March 2023 it had amended its case to seek orders that the lot owners give it vacant access to lot 2 until building works to the common property were complete, and that they indemnify it for building works needed to make lot 2 comply with fire orders issued by the City of Sydney Council under a by-law. On 1 August 2023 the Tribunal made orders by consent, meaning both sides agreed to them. Those orders gave the owners corporation or its agent access to lot 2 for purposes such as marking out parts that needed demolition and inspecting areas once opened up, and dealt with contractor licensing, work standards and costs. One order said that if the lot owners did not comply, the owners corporation could renew the proceedings. The consent orders did not say by when the lot owners had to comply.

On 31 July 2024 the owners corporation filed a fresh application. On its face it was described as a renewal application under schedule 4, clause 8 of the Civil and Administrative Tribunal Act 2013 (NSW) — a way of bringing an earlier case back to the Tribunal when its orders have not been followed. The annexure to it sought six orders and cited sections 124(1)(a), 132(1) and 232(1) of the Strata Schemes Management Act 2015 (NSW). It said the lot owners had not complied, that the owners corporation remained in breach of the council's fire order as a result, and that the lot owners had indicated they intended to sell lot 2 in its non-compliant state.

At the hearing on 7 May 2025 the lot owners challenged the Tribunal's power to decide the application on two bases: that the original claim had merged into the 2023 consent orders so there was nothing left to decide, and that the renewal power did not apply because the consent orders set no compliance period. The owners corporation argued its application was not only a renewal application but also a fresh application under the Strata Schemes Management Act. The member said the renewal point would be dealt with first, told the owners corporation's solicitor to "confine" and "stick to" submissions on that premise, and said the Tribunal would then "have a think" about the fresh application argument. The member reserved the decision, then later the same day dismissed the whole application — deciding both the renewal point and, "for completeness", rejecting the fresh application argument on the basis that no leave had been sought or granted for the application to change character.

What each side wanted

On appeal, the owners corporation argued the Tribunal made errors of law: that it was denied a fair opportunity to make submissions and lead evidence on its key argument that the application could be treated as a fresh application under sections 132 and 232 of the Strata Schemes Management Act; that the Tribunal asked the wrong question in treating the absence of a leave application as decisive; that it failed to take into account sections 36 and 38 of the Civil and Administrative Tribunal Act; and that its reasons on that point were inadequate. The lot owners replied that the appeal disclosed no error: the original claim had merged into the consent orders, the Tribunal was functus officio (had finished its task), the renewal gateway was shut because no compliance period had been specified, and the owners corporation had made a deliberate choice to proceed at the hearing without asking for an adjournment, so could not complain it was unheard. They also argued that even if there was unfairness it made no difference, because the missing compliance period was a plain textual fact that no further evidence or argument could cure.

What the tribunal decided

The Appeal Panel allowed the appeal. It set aside order 1 made on 7 May 2025 in proceedings 2024/00280509 — the order dismissing the application.

The application was sent back (remitted) to the Tribunal, differently constituted from the member who heard it on 7 May 2025, to hear and decide whether the proceedings and the application should be treated as involving an application seeking relief under the Strata Schemes Management Act 2015 (NSW), and whether the owners corporation is estopped or otherwise precluded from asserting that. Subject to how those issues are decided, the Tribunal is then to make whatever further directions it considers appropriate to determine the application.

The Appeal Panel also set a timetable for costs of the appeal. Any party seeking costs must file and serve submissions and any evidence on costs within 14 days of the orders; a party opposing must do the same within 28 days; the party seeking costs may reply within 35 days. Anyone filing costs submissions must say whether they agree the Appeal Panel can decide costs on the papers without another in-person hearing.

Why the tribunal decided it that way

The appeal was brought under section 80(2) of the Civil and Administrative Tribunal Act, which allows an internal appeal as of right on a question of law. Whether a party was denied procedural fairness — a fair hearing — is a question of law, so the owners corporation did not need leave for that ground.

The Appeal Panel pointed to the Tribunal's own statutory duties. Section 38(2) makes the Tribunal subject to the rules of natural justice. Section 38(5)(c) requires it to ensure each party has a reasonable opportunity to be heard or to have its submissions considered. Section 38(6)(a) requires it to ensure, as far as practicable, that all relevant material is disclosed. The Panel said procedural fairness lies at the heart of the Tribunal's function, and that a central part of it is the chance to be heard and to advance your own case.

Reading the transcript, the Panel found the member had separated two issues and signalled that the renewal point would be decided first, with the fresh application argument to be considered afterwards. The owners corporation's solicitor was expressly told to confine submissions to the renewal point and to argue on the premise that the application was a renewal application — the very characterisation the owners corporation disputed. The member reserved the decision only on the renewal question, gave no warning that the fresh application argument would also be decided, and did not correct the solicitor's stated understanding that the renewal point came first. By then dismissing the whole application, the Tribunal decided the characterisation argument without the owners corporation having had the chance to make its submissions or take the Tribunal to its evidence on it. The Panel also found the reasons did not engage with two of the three matters the owners corporation had said it wanted to rely on, or with its submission that leave to amend was not required. The Panel rejected the argument that the owners corporation had made a forensic choice to proceed: agreeing to meet the jurisdictional challenge was not a choice about how the characterisation argument would be determined, and because no notice was given, the occasion to ask for an adjournment never arose.

Not every breach of procedural fairness invalidates a decision. The Panel noted that trivial breaches do not, and that there is a threshold of materiality, applying High Court authority on whether the decision could realistically have been different had a fair hearing been given. As set out in the Panel's introduction, it concluded the denial was material, because there was a realistic possibility of a different decision had procedural fairness been afforded. The Panel did not decide who should win the underlying strata dispute, and the lot owners' merger and preclusion arguments were left to be heard and determined according to law. The published text available here stops partway through the materiality discussion, so the full reasoning on that point is not set out above.

What this means if you are in a similar position

If you are in a similar position — in a strata dispute, or any tribunal case where the other side raises a challenge on the day of the hearing — this decision shows how the Tribunal's duty to give each side a reasonable opportunity to be heard is applied in practice. The Tribunal can manage a hearing by splitting it into issues and taking them one at a time, and it can direct a party to confine its submissions to the issue in front of it. What the Appeal Panel found unfair here was deciding a second, different issue after telling a party not to argue it, and without warning that the reserved decision would go that far.

The decision also shows that an unfair hearing is not enough on its own. An appeal panel looks at whether the unfairness was material — whether the result could realistically have been different if the party had been heard. Where that test is met, the usual result is not that the appeal panel decides the dispute itself. Here the orders put the parties back where they were before the dismissal: the case returns to a different member to decide the open questions, and both sides' arguments about how the application should be characterised and whether it is barred remain to be determined.

In disputes of this kind, where an owners corporation needs access to a lot or needs work done to meet a council order, most people start before any tribunal application with a written notice to the lot owner that sets out the breach, what has to be done and by when. If that is ignored, the next step is usually an application to the Tribunal.

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

Source: The Owners – Strata Plan No. 66375 v Baltusrol Pty Ltd and Stollery [2026] NSWCATAP 356 (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.