The Owners – Strata Plan 72347 v P&D Bush Pty Ltd [2019] NSWCATCD 69

The Owners – Strata Plan 72347 v P&D Bush Pty Ltd [2019] NSWCATCD 69

The Tribunal was not functus officio because the costs application was made within a reasonable time after the written substantive decision and the applicant had been put on notice by the respondent's offer that costs might be sought. Rule 38(2) did not apply because the amount claimed was about $19,000, no clause 10(2) order had been sought or made, and the applicant had not conducted the proceedings in a way that unreasonably disadvantaged the respondent. Although the applicant's substantive case was weak and failed, it was not unarguable, frivolous, vexatious, misconceived, or lacking in substance. However, the respondent's offer identified the bases on which the proceedings were...

Jurisdiction
Australia
Judgment Date
17 July 2019
Procedural Posture
Costs Application in Consumer and Commercial Division Proceedings / On Papers After Substantive Application Dismissed
Outcome
Costs awarded to the respondent on the ordinary basis from 2 March 2019, capped at $5,000; hearing on costs dispensed with.
Legal Topics
['special Circumstances for Costs in Ncat' 'calderbank Offer' 'functus Officio' 'costs on Ordinary or Indemnity Basis']
['civil Procedure' 'costs' 'consumer and Commercial Division Proceedings'] ['special Circumstances for Costs in Ncat' 'calderbank Offer' 'functus Officio' 'costs on Ordinary or Indemnity Basis']

Case Brief

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Procedural Posture

Costs Application in Consumer and Commercial Division Proceedings / On Papers After Substantive Application Dismissed

Legal Issues

  1. 1 ['Whether the Tribunal was functus officio and unable to determine the costs application after the substantive decision.' 'Whether rule 38(2) of the Civil and Administrative Tribunal Rules 2014 applied to permit a costs order without special circumstances.' 'Whether special circumstances under s 60 of the Civil and Administrative Tribunal Act 2013 warranted an award of costs.' "Whether the applicant's refusal of the respondent's offer was unreasonable." "Whether costs should be awarded on an ordinary basis, indemnity basis, or limited to expert's costs."]

Ratio Decidendi

The Tribunal was not functus officio because the costs application was made within a reasonable time after the written substantive decision and the applicant had been put on notice by the respondent's offer that costs might be sought. Rule 38(2) did not apply because the amount claimed was about $19,000, no clause 10(2) order had been sought or made, and the applicant had not conducted the proceedings in a way that unreasonably disadvantaged the respondent. Although the applicant's substantive case was weak and failed, it was not unarguable, frivolous, vexatious, misconceived, or lacking in substance. However, the respondent's offer identified the bases on which the proceedings were...

Court Disposition

Costs awarded to the respondent on the ordinary basis from 2 March 2019, capped at $5,000; hearing on costs dispensed with.

Orders

  • ['A hearing on costs is dispensed with in accordance with s 50(1)(c) of the Civil and Administrative Tribunal Act 2013.' "The applicant is to pay the respondent's costs of the proceedings from 2 March 2019 on the ordinary basis, as agreed or assessed, but limited to a maximum amount of $5,000."]