Horan v The Owners – Strata Plan No. 68307 (No 2) [2024] NSWCATAP 173

Horan v The Owners – Strata Plan No. 68307 (No 2) [2024] NSWCATAP 173

Because r 38 applied to the appeal through r 38A and the appellant was the successful party, the usual costs order in favour of the appellant should be made. The respondent did not establish any basis to depart from that order: the relied upon Calderbank offers related to first instance proceedings rather than the appeal, the appellant's conduct and failure to cite Sellars did not disentitle him to costs, and the appeal grounds were not sufficiently separable or dominant to justify issue-based apportionment. The costs application could be determined without a hearing by consent, and no notation under s 104 of the Strata Schemes Management Act 2015 (NSW) was appropriate.

Jurisdiction
Australia
Judgment Date
06 September 2024
Procedural Posture
Application for Costs in an NCAT Appeal Panel Appeal / After Leave to Appeal Was Granted, the Appeal Was Allowed in Part and Damages Were Varied; Costs Application Determined on the Papers
Outcome
Application for costs determined in favour of the appellant; hearing dispensed with.
Legal Topics
['costs in NCAT Appeals' 'civil and Administrative Tribunal Rules 2014 (nsw) Rr 38 and 38 A' 'calderbank Offers' 'costs Apportionment by Issues' 'strata Schemes Management Act 2015 (nsw) S 104']
['costs' 'civil Procedure' 'strata Schemes'] ['costs in NCAT Appeals' 'civil and Administrative Tribunal Rules 2014 (nsw) Rr 38 and 38 A' 'calderbank Offers' 'costs Apportionment by Issues' 'strata Schemes Management Act 2015 (nsw) S 104']

Case Brief

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Procedural Posture

Application for Costs in an NCAT Appeal Panel Appeal / After Leave to Appeal Was Granted, the Appeal Was Allowed in Part and Damages Were Varied; Costs Application Determined on the Papers

Legal Issues

  1. 1 ['Whether a hearing of the costs application should be dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW), as applied to appeals by r 38A, governed the costs application so that special circumstances under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) were not required.' 'Whether the appellant, as the successful party on the appeal, should receive the usual order for costs.' 'Whether Calderbank offers made before the first instance decision justified departing from the usual costs order for the appeal.' "Whether the appellant's conduct of the appeal or failure on some grounds justified refusing, reversing or apportioning costs." 'Whether the Appeal Panel should make a notation concerning s 104 of the Strata Schemes Management Act 2015 (NSW).']

Ratio Decidendi

Because r 38 applied to the appeal through r 38A and the appellant was the successful party, the usual costs order in favour of the appellant should be made. The respondent did not establish any basis to depart from that order: the relied upon Calderbank offers related to first instance proceedings rather than the appeal, the appellant's conduct and failure to cite Sellars did not disentitle him to costs, and the appeal grounds were not sufficiently separable or dominant to justify issue-based apportionment. The costs application could be determined without a hearing by consent, and no notation under s 104 of the Strata Schemes Management Act 2015 (NSW) was appropriate.

Court Disposition

Application for costs determined in favour of the appellant; hearing dispensed with.

Orders

  • ['A hearing of the application for costs is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.' "The respondent is to pay the appellant's costs of the appeal, such costs to be as agreed or assessed on an ordinary basis."]