Frampton v The Owners – Strata Plan No 35012 [2019] NSWCATAP 265

Frampton v The Owners – Strata Plan No 35012 [2019] NSWCATAP 265

The applicants did not withdraw their application: their December 2018 and January 2019 communications sought dismissal on asserted jurisdictional or standing grounds and asked for a decision, despite clear invitations to withdraw under s 55(1)(a). Although they ceased to be interested persons after sale of the lot, they were interested persons when the proceedings were commenced and when they closed their case, and the Tribunal had jurisdiction to make costs orders under s 60. The Tribunal was entitled to consider findings in the unappealed substantive decision when deciding costs. The applicants did not identify any error in the finding of special circumstances, did not satisfy the...

Jurisdiction
Australia
Judgment Date
31 October 2019
Procedural Posture
Appeal Against Costs Decision in Strata Proceedings / Leave to Appeal and Appeal Before NCAT Appeal Panel
Outcome
Leave to appeal refused; appeal dismissed; applicants ordered to pay respondent's costs of the appeal.
Legal Topics
['special Circumstances for Costs Orders' 'calderbank Offer' 'withdrawal of Application' 'interested Persons Under Strata Schemes Management Act 2015' 'leave to Appeal' 'question of Law' 'wednesbury Unreasonableness']
['civil Procedure' 'costs' 'strata Schemes'] ['special Circumstances for Costs Orders' 'calderbank Offer' 'withdrawal of Application' 'interested Persons Under Strata Schemes Management Act 2015' 'leave to Appeal' 'question of Law' 'wednesbury Unreasonableness']

Case Brief

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Procedural Posture

Appeal Against Costs Decision in Strata Proceedings / Leave to Appeal and Appeal Before NCAT Appeal Panel

Legal Issues

  1. 1 ['Whether the applicants withdrew their application so that the Tribunal should have dismissed it under s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).' "Whether the applicants' ceasing to be interested persons within the meaning of s 226 of the Strata Schemes Management Act 2015 prevented the Tribunal from making costs orders against them." 'Whether the Tribunal erred in making findings of fact and law, or in taking findings from the substantive decision into account in the costs decision.' 'Whether special circumstances existed to warrant a costs order under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether leave to appeal should be granted on grounds including that the decision was against the weight of evidence or based on conclusions no reasonable Tribunal Member could reach.']

Ratio Decidendi

The applicants did not withdraw their application: their December 2018 and January 2019 communications sought dismissal on asserted jurisdictional or standing grounds and asked for a decision, despite clear invitations to withdraw under s 55(1)(a). Although they ceased to be interested persons after sale of the lot, they were interested persons when the proceedings were commenced and when they closed their case, and the Tribunal had jurisdiction to make costs orders under s 60. The Tribunal was entitled to consider findings in the unappealed substantive decision when deciding costs. The applicants did not identify any error in the finding of special circumstances, did not satisfy the...

Court Disposition

Leave to appeal refused; appeal dismissed; applicants ordered to pay respondent's costs of the appeal.

Orders

  • ['Leave to Appeal is refused.' 'The Appeal is dismissed.' 'Alexandra Frampton and Peter Frampton must pay The Owners – Strata Plan No 35012 costs of the Appeal, such costs if not agreed to be assessed on the basis set out in the legal costs legislation as defined in Legal Profession Uniform Law Application Act 2014...