Adendorff v The Owners - Strata Plan No. 16629 [2021] NSWCATCD 76

Adendorff v The Owners - Strata Plan No. 16629 [2021] NSWCATCD 76

Rule 38 did not apply because there was no amount in dispute. The Tribunal was not satisfied that the Owners Corporation established special circumstances under s 60: the Lot Owners' expert evidence and adjournment were not shown to have unnecessarily prolonged the proceedings; material not admitted did not prolong the hearing because the parties agreed the Tribunal could find acrimony without admitting it; failure in the substantive proceedings did not itself amount to special circumstances; the case remained arguable despite some submissions lacking a tenable basis; success by the Owners Corporation was not the correct starting point; settlement was unlikely given the strained...

Jurisdiction
Australia
Judgment Date
02 August 2021
Procedural Posture
Costs Application in Consumer and Commercial Division Strata Scheme Proceedings / Decision on Costs Applications After Final Decision; Determined on the Papers
Outcome
Hearing dispensed with and the costs applications dismissed.
Legal Topics
['special Circumstances for Costs' 'rule 38 Costs in Consumer and Commercial Division' 'dispensing With a Hearing' 'unauthorised Strata Works']
['costs' 'strata Schemes' 'civil Procedure' 'administrative Tribunals'] ['special Circumstances for Costs' 'rule 38 Costs in Consumer and Commercial Division' 'dispensing With a Hearing' 'unauthorised Strata Works']

Case Brief

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Procedural Posture

Costs Application in Consumer and Commercial Division Strata Scheme Proceedings / Decision on Costs Applications After Final Decision; Determined on the Papers

Legal Issues

  1. 1 ['Whether a hearing of the costs applications should be dispensed with under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether Rule 38 of the Civil and Administrative Tribunal Rules 2013 (NSW) applied to permit a costs order in the absence of special circumstances.' "Whether special circumstances under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) warranted ordering the Lot Owners to pay the Owners Corporation's costs."]

Ratio Decidendi

Rule 38 did not apply because there was no amount in dispute. The Tribunal was not satisfied that the Owners Corporation established special circumstances under s 60: the Lot Owners' expert evidence and adjournment were not shown to have unnecessarily prolonged the proceedings; material not admitted did not prolong the hearing because the parties agreed the Tribunal could find acrimony without admitting it; failure in the substantive proceedings did not itself amount to special circumstances; the case remained arguable despite some submissions lacking a tenable basis; success by the Owners Corporation was not the correct starting point; settlement was unlikely given the strained...

Court Disposition

Hearing dispensed with and the costs applications dismissed.

Orders

  • ['An order is made pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW), dispensing with a hearing.' 'The costs applications are dismissed.']