Promina Design & Construction Pty Ltd v The Owners – Strata Plan No. 97449 (No 2) [2023] NSWCATAP 164

Promina Design & Construction Pty Ltd v The Owners – Strata Plan No. 97449 (No 2) [2023] NSWCATAP 164

Rule 38A was not engaged because there was no amount claimed or in dispute in the appeal, which related solely to the order transferring the first instance proceedings to the District Court. Although the appellant failed in the stay application, the issue was apparently novel in the Tribunal, the stay would have been granted if the question of power had been resolved in the appellant's favour, the application was not unreasonably lodged or maintained, and there was nothing unusual in a party failing in a stay application. The Appeal Panel was therefore not satisfied that special circumstances warranted an award of costs.

Jurisdiction
Australia
Judgment Date
21 June 2023
Procedural Posture
Application for Costs of an Application for a Stay in an Internal Appeal / Appeal Panel, on the Papers, After Dismissal of the Stay Application
Outcome
The respondent's application for costs of the application for a stay was dismissed, with each party to pay its own costs of the application.
Legal Topics
['costs in NCAT Proceedings' 'internal Appeals' 'stay Applications' 'special Circumstances for Costs' 'rule 38 a of the Civil and Administrative Tribunal Rules 2014 (nsw)']
['costs' 'civil Procedure' 'administrative Law' 'home Building'] ['costs in NCAT Proceedings' 'internal Appeals' 'stay Applications' 'special Circumstances for Costs' 'rule 38 a of the Civil and Administrative Tribunal Rules 2014 (nsw)']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Costs of an Application for a Stay in an Internal Appeal / Appeal Panel, on the Papers, After Dismissal of the Stay Application

Legal Issues

  1. 1 ["Whether to dispense with a hearing of the respondent's application for costs and determine it on the papers." 'Whether r 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) applied to the costs of the stay application.' 'Whether special circumstances under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) warranted an award of costs to the respondent.' 'Whether the failed stay application was unreasonably lodged or maintained.']

Ratio Decidendi

Rule 38A was not engaged because there was no amount claimed or in dispute in the appeal, which related solely to the order transferring the first instance proceedings to the District Court. Although the appellant failed in the stay application, the issue was apparently novel in the Tribunal, the stay would have been granted if the question of power had been resolved in the appellant's favour, the application was not unreasonably lodged or maintained, and there was nothing unusual in a party failing in a stay application. The Appeal Panel was therefore not satisfied that special circumstances warranted an award of costs.

Court Disposition

The respondent's application for costs of the application for a stay was dismissed, with each party to pay its own costs of the application.

Orders

  • ["A hearing of the respondent's application for costs of the application for a stay is dispensed with." "The respondent's application for costs of the application for a stay is dismissed."]