Rodny v Stricke [2019] NSWCATCD 91

Rodny v Stricke [2019] NSWCATCD 91

Special circumstances warranting a costs order were established because the Applicants unreasonably prolonged the proceedings by failing to progress and serve their evidence within a reasonable time, including while an appeal about representation was pending, and by withdrawing the proceedings after leave to appeal the listed hearing dates was refused when the matter was otherwise ready for hearing. Those matters engaged s60(3)(b) and s60(3)(g) of the Civil and Administrative Tribunal Act 2013 (NSW). However, because there had been no substantive hearing, the Tribunal would not determine whether the Applicants' evidence was irrelevant or whether their substantive strata claims were...

Jurisdiction
Australia
Judgment Date
02 August 2019
Procedural Posture
Costs Application in Consumer and Commercial Division Strata Proceedings / After Applicants Withdrew Their Application and It Was Dismissed Under S55(1)(a) of the Civil and Administrative Tribunal Act 2013 (nsw); Respondents Sought Costs and the Tribunal Dispensed With a Hearing Under S50
Outcome
Costs application allowed in part; Applicants ordered to pay Respondents' costs of the proceedings including the present costs application, but indemnity costs were not ordered.
Legal Topics
['special Circumstances for Costs in Ncat' 'costs After Withdrawal and Dismissal of Proceedings' 'delay in Proceedings' 'indemnity Costs' 'dispensing With Hearing on Costs' 'strata Committee and Strata Managing Agent Orders']
['civil Procedure' 'costs' 'strata Schemes'] ['special Circumstances for Costs in Ncat' 'costs After Withdrawal and Dismissal of Proceedings' 'delay in Proceedings' 'indemnity Costs' 'dispensing With Hearing on Costs' 'strata Committee and Strata Managing Agent Orders']

Case Brief

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Procedural Posture

Costs Application in Consumer and Commercial Division Strata Proceedings / After Applicants Withdrew Their Application and It Was Dismissed Under S55(1)(a) of the Civil and Administrative Tribunal Act 2013 (nsw); Respondents Sought Costs and the Tribunal Dispensed With a Hearing Under S50

Legal Issues

  1. 1 ['Whether the costs application could be determined without a hearing under s50 of the Civil and Administrative Tribunal Act 2013 (NSW)' 'Whether special circumstances existed under s60 of the Civil and Administrative Tribunal Act 2013 (NSW) warranting an award of costs to the Respondents after withdrawal and dismissal of the proceedings' 'Whether delay caused by the Applicants and withdrawal after failed attempts to vacate hearing dates constituted special circumstances' "Whether the Tribunal should assess the relevance or merits of the Applicants' evidence and substantive strata claims on a costs application after withdrawal" 'Whether costs should be ordered on an indemnity basis']

Ratio Decidendi

Special circumstances warranting a costs order were established because the Applicants unreasonably prolonged the proceedings by failing to progress and serve their evidence within a reasonable time, including while an appeal about representation was pending, and by withdrawing the proceedings after leave to appeal the listed hearing dates was refused when the matter was otherwise ready for hearing. Those matters engaged s60(3)(b) and s60(3)(g) of the Civil and Administrative Tribunal Act 2013 (NSW). However, because there had been no substantive hearing, the Tribunal would not determine whether the Applicants' evidence was irrelevant or whether their substantive strata claims were...

Court Disposition

Costs application allowed in part; Applicants ordered to pay Respondents' costs of the proceedings including the present costs application, but indemnity costs were not ordered.

Orders

  • ['The Applicants are to pay the Respondents costs of the proceedings, such costs to include the costs of the present Application.']