Xabregas v The Owners - Strata Plan No. 79205; Moallem v Consumer, Trader and Tenancy Tribunal & Ors (No. 2) [2014] NSWSC 1027

Xabregas v The Owners - Strata Plan No. 79205; Moallem v Consumer, Trader and Tenancy Tribunal & Ors (No. 2) [2014] NSWSC 1027

A personal costs order should not be made against Grace Lawyers despite the notice of motion having no reasonable prospects of success, as the conduct did not amount to serious neglect, incompetence, misconduct, or impropriety under s 99; Progressive Strata as compulsory strata managing agent, being the real party to the Owners Corporation's failed notice of motion, should bear the burden of the Owners Corporation's liability to pay costs for that application and indemnify Owners Corporation for legal costs of that motion; costs of Ms Moallem's application and summons should primarily be met by the owners of lot 2, with Progressive Strata to indemnify only to extent costs are not...

Jurisdiction
Australia
Judgment Date
31 July 2014
Procedural Posture
Costs Applications in Civil Proceedings Relating to Strata Management and Owners Corporations / Post Judgment Orders and Application to Vary/discharge Costs Orders
Outcome
Application for personal costs order against solicitor refused; application for costs order against compulsory strata managing agent granted with respect to unsuccessful notice of motion but not defence; owners of lot 2 to indemnify Owners Corporation for its own costs incurred in proceedings.
Legal Topics
['costs Orders' 'personal Costs Order Against Solicitor' 'costs Levies in Strata Schemes' 'application for Costs Against Non Party' 'indemnity of Owners Corporation' 'variation of Costs Orders']
['civil Procedure' 'strata Schemes'] ['costs Orders' 'personal Costs Order Against Solicitor' 'costs Levies in Strata Schemes' 'application for Costs Against Non Party' 'indemnity of Owners Corporation' 'variation of Costs Orders']

Case Brief

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Procedural Posture

Costs Applications in Civil Proceedings Relating to Strata Management and Owners Corporations / Post Judgment Orders and Application to Vary/discharge Costs Orders

Legal Issues

  1. 1 ['Entitlement to personal costs order under s 99 Civil Procedure Act against solicitor' 'Entitlement to third party costs order against compulsory strata managing agent' 'Application for payment/indemnity of costs by non-parties to the litigation' 'Power to restrain the owners corporation from levying successful parties for costs incurred in proceedings']

Ratio Decidendi

A personal costs order should not be made against Grace Lawyers despite the notice of motion having no reasonable prospects of success, as the conduct did not amount to serious neglect, incompetence, misconduct, or impropriety under s 99; Progressive Strata as compulsory strata managing agent, being the real party to the Owners Corporation's failed notice of motion, should bear the burden of the Owners Corporation's liability to pay costs for that application and indemnify Owners Corporation for legal costs of that motion; costs of Ms Moallem's application and summons should primarily be met by the owners of lot 2, with Progressive Strata to indemnify only to extent costs are not...

Court Disposition

Application for personal costs order against solicitor refused; application for costs order against compulsory strata managing agent granted with respect to unsuccessful notice of motion but not defence; owners of lot 2 to indemnify Owners Corporation for its own costs incurred in proceedings.

Orders

  • ['Vary order 2 made by Windeyer AJ on 25 October 2013 by discharging and substituting orders prohibiting levies against lot 1 and lot 2 for costs of notice of motion of 29 August 2013.' 'Progressive Strata Services Pty Ltd to pay costs payable by Owners Corporation to respondents to notice of motion of 29 August...