Davenport v The Owners – Strata Plan 536; The Owners – Strata Plan 536 v Davenport (No 2) [2019] NSWCATAP 55

Davenport v The Owners – Strata Plan 536; The Owners – Strata Plan 536 v Davenport (No 2) [2019] NSWCATAP 55

Special circumstances warranting a costs order were not established. The appeals turned significantly on new Council evidence discovered only during the appeal, and neither party was at fault for its earlier absence. Before that evidence emerged, the Owners Corporation's position was tenable, the interlocutory steps and legal representation were ordinary incidents of the strata dispute, and the failure to accept offers made before the new evidence was not shown to be unreasonable. Accordingly, the default rule in s 60(1) that each party pay their own costs applied.

Jurisdiction
Australia
Judgment Date
13 March 2019
Procedural Posture
Costs Applications in Strata Schemes Appeals / Appeal Panel Determination on the Papers After Appeal Decision
Outcome
Applications for costs dismissed; hearing dispensed with.
Legal Topics
['special Circumstances for Costs' 'fresh Evidence on Appeal' 'owners Corporation Repair Obligations' 'costs in NCAT Proceedings']
['civil Procedure' 'strata Schemes' 'costs'] ['special Circumstances for Costs' 'fresh Evidence on Appeal' 'owners Corporation Repair Obligations' 'costs in NCAT Proceedings']

Case Brief

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Procedural Posture

Costs Applications in Strata Schemes Appeals / Appeal Panel Determination on the Papers After Appeal Decision

Legal Issues

  1. 1 ['Whether a hearing should be dispensed with under s 50(2) of the Civil and Administrative Tribunal Act, 2013.' 'Whether special circumstances existed under s 60 of the Civil and Administrative Tribunal Act, 2013 warranting costs orders for the appeals and proceedings below.' 'Whether new evidence first produced on appeal, for which neither party was responsible for late production, justified a costs order.' "Whether the Owners Corporation's conduct, interlocutory conduct, legal representation, complexity, or failure to accept offers of compromise justified costs orders."]

Ratio Decidendi

Special circumstances warranting a costs order were not established. The appeals turned significantly on new Council evidence discovered only during the appeal, and neither party was at fault for its earlier absence. Before that evidence emerged, the Owners Corporation's position was tenable, the interlocutory steps and legal representation were ordinary incidents of the strata dispute, and the failure to accept offers made before the new evidence was not shown to be unreasonable. Accordingly, the default rule in s 60(1) that each party pay their own costs applied.

Court Disposition

Applications for costs dismissed; hearing dispensed with.

Orders

  • ['A hearing is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013.' 'The applications for costs are dismissed.']