Shoal Bay Developments v Community Association DP 270468 [2020] NSWCATCD 22

Shoal Bay Developments v Community Association DP 270468 [2020] NSWCATCD 22

Rule 38 did not apply because the Lot Owners sought, in substance, declaratory relief about the effect of any order under s 83 and the Tribunal could not order the Community Association to refund an amount over $30,000. However, special circumstances warranted costs: the Lot Owners provided irrelevant material, withdrew only after a fully contested hearing, and advanced a claim with no tenable basis in law which was misconceived and lacking in substance. The Community Association was therefore entitled to compensation for the costs of defending the proceedings on the usual basis.

Jurisdiction
Australia
Judgment Date
22 January 2020
Procedural Posture
Costs Application in Consumer and Commercial Division Proceedings Concerning Community Association Levies Under S 83 of the Community Land Management Act 1989 / After the Applicants Withdrew Their Substantive Application Following a Hearing and Before Decision
Outcome
Costs awarded to the respondent.
Legal Topics
['application of Rule 38 of the Civil and Administrative Tribunal Rules' 'special Circumstances for Costs Under S 60 of the Civil and Administrative Tribunal Act 2013' 'withdrawal of Proceedings After Hearing' 'community Association Levies']
['community Associations' 'costs' 'civil Procedure'] ['application of Rule 38 of the Civil and Administrative Tribunal Rules' 'special Circumstances for Costs Under S 60 of the Civil and Administrative Tribunal Act 2013' 'withdrawal of Proceedings After Hearing' 'community Association Levies']

Case Brief

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Procedural Posture

Costs Application in Consumer and Commercial Division Proceedings Concerning Community Association Levies Under S 83 of the Community Land Management Act 1989 / After the Applicants Withdrew Their Substantive Application Following a Hearing and Before Decision

Legal Issues

  1. 1 ['Whether Rule 38 applied because the amount claimed or in dispute in the proceedings was more than $30,000.' 'Whether special circumstances warranted an award of costs under s 60 of the Civil and Administrative Tribunal Act 2013.' "Whether the Tribunal should exercise its discretion to order the Lot Owners to pay the Community Association's costs."]

Ratio Decidendi

Rule 38 did not apply because the Lot Owners sought, in substance, declaratory relief about the effect of any order under s 83 and the Tribunal could not order the Community Association to refund an amount over $30,000. However, special circumstances warranted costs: the Lot Owners provided irrelevant material, withdrew only after a fully contested hearing, and advanced a claim with no tenable basis in law which was misconceived and lacking in substance. The Community Association was therefore entitled to compensation for the costs of defending the proceedings on the usual basis.

Court Disposition

Costs awarded to the respondent.

Orders

  • ["Shoal Bay Developments Pty Ltd and Snoogal Pty Ltd are to pay to the Community Association DP 270468 the Community Association's costs of these proceedings, on the usual basis, as agreed or assessed."]