Scott-Young v The Owners - Strata Plan 77303 [2022] NSWCATAP 289

Scott-Young v The Owners - Strata Plan 77303 [2022] NSWCATAP 289

The Appeal Panel dismissed the costs application because it was not satisfied that the withdrawn appeal had no tenable basis in fact or law or was frivolous, vexatious, misconceived or lacking in substance. Although the Notice of Appeal was rambling and the prospects of success may not have been strong, it asserted that the Decision was against the weight of the evidence and identified evidence said to support leave to appeal, so the appeal could not be characterised as doomed to fail. The appellants' withdrawal because they could not afford legal representation did not amount to a surrender. No special circumstances warranting a costs order were established.

Jurisdiction
Australia
Judgment Date
07 September 2022
Procedural Posture
Internal Appeal Costs Application / Costs Application After Withdrawal of Appeal, Determined on the Papers
Outcome
The respondent's application for costs of the appeal was dismissed.
Legal Topics
['costs on Appeal' 'special Circumstances for Costs' 'withdrawal of Appeal' 'legal Representation of Owners Corporation']
['costs' 'civil Procedure' 'strata Schemes'] ['costs on Appeal' 'special Circumstances for Costs' 'withdrawal of Appeal' 'legal Representation of Owners Corporation']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Internal Appeal Costs Application / Costs Application After Withdrawal of Appeal, Determined on the Papers

Legal Issues

  1. 1 ['Whether a hearing on the question of costs should be dispensed with under s50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether the Costs Applicant could seek costs of the Tribunal proceedings as well as costs of the appeal.' "Whether the Costs Applicant's submissions should be disregarded as late." 'Whether the Costs Applicant had authority to engage lawyers under s103 of the Strata Schemes Management Act 2015 (NSW).' 'Whether special circumstances existed under s60(2) and s60(3)(c) or s60(3)(e) of the Civil and Administrative Tribunal Act 2013 (NSW) warranting an order that the Costs Respondents pay the costs of the withdrawn appeal.']

Ratio Decidendi

The Appeal Panel dismissed the costs application because it was not satisfied that the withdrawn appeal had no tenable basis in fact or law or was frivolous, vexatious, misconceived or lacking in substance. Although the Notice of Appeal was rambling and the prospects of success may not have been strong, it asserted that the Decision was against the weight of the evidence and identified evidence said to support leave to appeal, so the appeal could not be characterised as doomed to fail. The appellants' withdrawal because they could not afford legal representation did not amount to a surrender. No special circumstances warranting a costs order were established.

Court Disposition

The respondent's application for costs of the appeal was dismissed.

Orders

  • ['Pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), dispense with a hearing on the question of costs.' "The respondent's (costs applicant's) application for costs of the appeal is dismissed."]