Shousha v Owners Strata Plan No 2657 (No 2) [2022] NSWCATAP 114

Shousha v Owners Strata Plan No 2657 (No 2) [2022] NSWCATAP 114

Because the first instance proceedings were regulated by rule 38, rule 38A required the Appeal Panel to apply the first instance costs provisions to the appeal. The Respondent was wholly successful in defending the appeal, had incurred expense in engaging legal representation, and no basis was identified for refusing to exercise the discretion to award costs. The Appeal Panel therefore ordered the Appellant to pay the Respondent's costs of the appeal.

Jurisdiction
Australia
Judgment Date
14 April 2022
Procedural Posture
Appeal – Costs of Appeal / Appeal Panel Determination on the Papers of the Respondent's Application for Costs of the Appeal
Outcome
The Respondent's application for costs of the appeal was granted and a hearing on costs was dispensed with.
Legal Topics
['costs of Appeal' 'rule 38 A' 'rule 38' 'section 60 Costs Discretion' 'dispensing With a Hearing']
['civil Procedure' 'costs' 'strata Schemes'] ['costs of Appeal' 'rule 38 A' 'rule 38' 'section 60 Costs Discretion' 'dispensing With a Hearing']

Case Brief

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Procedural Posture

Appeal – Costs of Appeal / Appeal Panel Determination on the Papers of the Respondent's Application for Costs of the Appeal

Legal Issues

  1. 1 ['Whether a hearing on the question of costs of the appeal should be dispensed with.' "Whether the Appeal Panel should order the Appellant to pay the Respondent's costs of the appeal." 'Whether rules 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) permitted an award of costs in the appeal without special circumstances.']

Ratio Decidendi

Because the first instance proceedings were regulated by rule 38, rule 38A required the Appeal Panel to apply the first instance costs provisions to the appeal. The Respondent was wholly successful in defending the appeal, had incurred expense in engaging legal representation, and no basis was identified for refusing to exercise the discretion to award costs. The Appeal Panel therefore ordered the Appellant to pay the Respondent's costs of the appeal.

Court Disposition

The Respondent's application for costs of the appeal was granted and a hearing on costs was dispensed with.

Orders

  • ['A hearing on the question of whether there should be an order for costs of the appeal to be made in favour of the Respondent is dispensed with.' "The Appellant is to pay the Respondent's costs of the appeal in an amount agreed or in the absence of agreement in an amount to be assessed."]