Zouk v The Owners Corporation of Strata Plan 4521 & Anor [2005] NSWSC 845

Zouk v The Owners Corporation of Strata Plan 4521 & Anor [2005] NSWSC 845

The Tribunal lacked power to make the costs order because the appeal had already been dismissed for reasons amounting to failure to discharge the onus of proof, and it was not dismissed because it was lacking in substance or misconceived. It was not open to the Tribunal later, when deciding costs, to make a further finding that the appeal was lacking in substance so as to satisfy s192.

Jurisdiction
Australia
Judgment Date
26 August 2005
Procedural Posture
Appeal From Consumer Trader and Tenancy Tribunal Costs Order / Supreme Court Appeal Under S200 of the Strata Schemes Management Act 1996
Outcome
Appeal allowed; the Tribunal's costs order was set aside.
Legal Topics
['appeal Against Adjudication' 'new Evidence on Appeal' 'tribunal Power to Award Costs' 'statutory Construction of S192' 'meaning of Lacking in Substance' 'extension of Time']
['strata Law' 'administrative Law' 'civil Procedure'] ['appeal Against Adjudication' 'new Evidence on Appeal' 'tribunal Power to Award Costs' 'statutory Construction of S192' 'meaning of Lacking in Substance' 'extension of Time']

Case Brief

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Procedural Posture

Appeal From Consumer Trader and Tenancy Tribunal Costs Order / Supreme Court Appeal Under S200 of the Strata Schemes Management Act 1996

Legal Issues

  1. 1 ['Whether the Tribunal had power under s192 of the Strata Schemes Management Act 1996 to make an order for costs after dismissing the appeal for reasons not expressed as the appeal being misconceived or lacking in substance.' 'Whether the appeal before the Tribunal was dismissed because it was misconceived or lacking in substance.' 'Whether time should be extended for an out-of-time application for leave to appeal.']

Ratio Decidendi

The Tribunal lacked power to make the costs order because the appeal had already been dismissed for reasons amounting to failure to discharge the onus of proof, and it was not dismissed because it was lacking in substance or misconceived. It was not open to the Tribunal later, when deciding costs, to make a further finding that the appeal was lacking in substance so as to satisfy s192.

Court Disposition

Appeal allowed; the Tribunal's costs order was set aside.

Orders

  • ['The order for payment of costs made by the Tribunal on 7 April 2005 is set aside.' 'The first defendant is to pay the costs of the appeal incurred subsequent to 1 July 2005, otherwise the parties are to pay their own costs.' "If it is so entitled, the first defendant is to have a certificate under the Suitors'...