Tan v The Owners Strata Plan 22014 (No 3) [2016] NSWSC 896

Tan v The Owners Strata Plan 22014 (No 3) [2016] NSWSC 896

In the exceptional circumstances where the Owners Corporation was initially incapable of contradicting the plaintiffs' application and the court joined Ms Porter as the necessary contradictor without an application by her, there was no material logical difference between the plaintiffs' and Ms Porter's positions for costs purposes. It was fair and just to exercise the discretion under s 98 of the Civil Procedure Act 2005 (NSW) to order the Owners Corporation to indemnify Ms Porter for costs reasonably incurred in responding to the plaintiffs' application and bringing the proceedings to an end.

Jurisdiction
Australia
Judgment Date
28 June 2016
Procedural Posture
Costs Application / On the Papers; Determination of Whether the First Defendant Should Indemnify the Third Defendant for Her Costs of the Proceedings
Outcome
The Owners Corporation was ordered to indemnify Ms Porter for her costs of the proceedings to the extent those costs were reasonably incurred in responding to the plaintiffs' application and bringing the proceedings to an end.
Legal Topics
['indemnity Costs' 'court Appointed Contradictor' 'owners Corporation' 'representative Proceedings' 'costs Discretion']
['civil Procedure' 'costs' 'strata'] ['indemnity Costs' 'court Appointed Contradictor' 'owners Corporation' 'representative Proceedings' 'costs Discretion']

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Procedural Posture

Costs Application / On the Papers; Determination of Whether the First Defendant Should Indemnify the Third Defendant for Her Costs of the Proceedings

Legal Issues

  1. 1 ['Whether the Owners Corporation should be ordered to indemnify Ms Porter for her costs of the proceedings in a manner generally equivalent to the indemnity ordered in favour of the plaintiffs.' "Whether the Wallersteiner principle could be extended to a contradictor effectively appointed by the court in exceptional circumstances where the Owners Corporation initially lacked power to respond to the plaintiffs' application." "Whether any indemnity in favour of Ms Porter should be limited to costs reasonably incurred in responding to the plaintiffs' application and bringing the proceedings to an end."]

Ratio Decidendi

In the exceptional circumstances where the Owners Corporation was initially incapable of contradicting the plaintiffs' application and the court joined Ms Porter as the necessary contradictor without an application by her, there was no material logical difference between the plaintiffs' and Ms Porter's positions for costs purposes. It was fair and just to exercise the discretion under s 98 of the Civil Procedure Act 2005 (NSW) to order the Owners Corporation to indemnify Ms Porter for costs reasonably incurred in responding to the plaintiffs' application and bringing the proceedings to an end.

Court Disposition

The Owners Corporation was ordered to indemnify Ms Porter for her costs of the proceedings to the extent those costs were reasonably incurred in responding to the plaintiffs' application and bringing the proceedings to an end.

Orders

  • ['The Owners Corporation is to indemnify Ms Porter in respect of her costs of these proceedings, where such costs were reasonably incurred in responding to the application made by the plaintiffs, and in bringing the proceedings to an end.' 'Any remaining exhibits and documents produced on subpoena or notice to...